CrimProf Blog

Editor: Stephen E. Henderson
University of Oklahoma

 
 

Tuesday, October 29, 2024

New editor Melanie Reid!

Some terrific news as we begin to build the team of CrimProf bloggers -- Melanie Reid is the first to join!  She's getting set up and will be live shortly.  In addition to the traditional crim law curriculum, she does fascinating work teaching law students about wellness and international criminal law, and hopefully, in time, she might share some of those insights.

Welcome, Melanie!

 

October 29, 2024 in About This Blog, Crim Profs | Permalink | Comments (0)

Monday, October 28, 2024

So you are going to law school…

I went to law school in the dark ages and never left. After a bit of dabbling, I have spent the last quarter century as a prof. Thus, I have both a reasonably good basis for opining on how one might wish to prepare (‘If I don’t know this gig by now!’) and a rather myopic one (‘But I don’t want to be a law professor; I’m going to be a real lawyer.’). And there are certainly aspects of law school that ought to be updated. For example, I’d shift the curriculum slightly in 1L, shift massively towards subject-of-practice interest in 2L, and shift almost entirely to case study and apprenticeship in 3L. (Not to mention stop teaching each particular course as if it were 1789, or even 1871.) Still, it’s not as if we law schools do everything wrong; far from it.

Importantly, as my 1L dean explained to our class comparatively long ago, when you enter law school, you engage with something special that has a very long, and sometimes-ugly-but-at-least-as-often-inspiring past. And, if you do it right, you don’t just graduate to become a lawyer—you become part of that very life of the law…part of the ever-present human struggle to be better…to be more just, to do more right, and to do less wrong…to produce a society of greater wealth, and one of more equal distribution thereof. It is the very human drama, and to be a lawyer is a good part to play, even for a cynic such as myself.

So, as you prepare to enter law school, I hope that you will take time to think on the why. Why do you want to be a lawyer? And I hope you think, like me, that there are very few wrong answers. To lessen social injustice is a right answer in my book…but so is to make money and raise a family…so is to run for political office…and so is to make a lot of money and spend it like Cleopatra. But thinking on the why now—the honest why—might help you rather a lot during law school, as you will be forced quite early to begin making choices not only about coursework, but about clinics, summer jobs, internships, and externships. Those choices often lead to post-graduation jobs, and those first jobs often practically (albeit definitely not necessarily) define a career path. So, decide for yourself now, and be true to yourself later, even in change.

Other than that, how to prepare? Read! I’d read Making Your Case: The Art of Persuading Judges (and, for the truly ambitious, Reading Law: The Interpretation of Legal Texts, but leave this one until the end of my list). Antonin Scalia was a legal giant (making the SCOTUSblog final four by beating out the amazing Thurgood Marshall and William Brennan) and, love him or hate him, he did more than any other recent Justice to change the way we approach legal reasoning and argument. So, read his book(s) to get an idea of how good lawyers do good work. But do not underline, highlight, etcetera, reading as if you were in class preparing for some ultimate test. There will be time enough for that. For now, simply take in the firehose. Hopefully, you will be inspired to see the joy in striving for excellence in the many aspects of advocacy over a career, and, during law school, you might be surprised to find how much your brain actually took in. And you can see whether you agree with Scalia or Bryan Garner (American law’s premier lexicographer and writing guru) on such minutiae as contractions in legal writing or the use of inline (versus footnote) citations; lawyers tend to have strong opinions about most everything, and these two are certainly no exception.

Next, I’d read The Bramble Bush, a series of lectures given by law professor Karl Llewellyn to law students of yesteryear. For nearly a century, this has been the classic ‘start of law school’ read, and it remains the single best text on law: both what law is and what lawyers can do with it, and what law school does well and what it tends not to do. If you use the Oxford printing, it will explain Llewellyn’s occasionally outdated references, and it will warn you to overlook the genderized speech of his day—lest you otherwise miss its underlying legal message. Other than that, you can read his words uninterrupted; they were meant for you, the new student of the law.

Still, two notes before you begin. First, as I noted with the Scalia/Garner work, do not let yourself get bogged down in minutiae—even minutiae you feel you might soon need, such as how to brief a case for the law school classroom. Again, there will be time enough for that; reading prior to law school is merely ‘setting the stage’ or ‘plowing the field,’ readying yourself for the detailed learning to come.

Second, my best guess is that you will pretty nicely travel through Llewellyn’s first three chapters, that you will begin to grow annoyed with his fourth (precedent), and that you will wish to toss in the towel somewhere during his fifth (maybe as you encounter Hohfeld in the third part thereof). I understand. And this leaves two options. One, you might content yourself with his Chapters 1 to 3 and 6. This is not a bad solution, really; again, you are merely setting the stage for three years of learning. Two, you might slog through Chapters 4 and 5, and then reskim each after the slog. Like much legal reading, the lightbulb is likely to go off on the reconsideration, and matters like Hohfeldian right/duty, privilege/no-right, and power/liability are powerful constructs that many practicing lawyers will never learn. If you learn them even before law school, you have an advantage. Either way, I’d ignore his Part Two (Chapters 7 through 10).

Next, I’d read Justice Brandeis’ dissenting opinion in Olmstead v. United States. Like Scalia, Justice Brandeis made it to SCOTUSblog’s final four, and as much as any single opinion can, his words in Olmstead define what it means to be an American. (Or at least so I’ve argued.) And we can practice law school by finding it: go to Google Scholar, click the radio button to select “Case law,” type in “Olmstead v United States,” select the top entry, search for “Brandeis,” and read the section “MR. JUSTICE BRANDEIS, dissenting.” That’s a good legal opinion, and if you don’t find at least some enjoyment in reading it, law school may not be for you!

Speaking of simple legal research, if you instead Google the case name, you might first come upon Oyez (https://www.oyez.org/), a terrific site for Supreme Court caselaw and oral argument. But beware the word’s pronunciation, which is ‘oh-yay’—alas, in law school we will have to learn new vocabulary, just like the jargon of other fields.

And since you will want to begin keeping up with the doings of the United States Supreme Court, you might consider subscribing to SCOTUSblog, but I’d recommend this lighter option: LII. Opt for both the previews and notices of decision, but do not trust the student-written summaries. They simply trigger when you ought to run to the Supreme Court’s website to read a case of interest.

If you are feeling more ambitious and you already have a law school .edu email, you might subscribe to some Bloomberg Law publications, which are a terrific way to keep up with developments in the law. Definitely select The United States Law Week, and you might consider some more specialized fare. For example, someone interested in law and technology might also subscribe to The Brief – Top News of Today, Artificial Intelligence, Tech & Telecom Law News, and/or Privacy & Data Security Law News.

Finally, I’d read The Constitution: An Introduction by Michael Stokes Paulsen & Luke Paulsen. This one comes with two things you’ll want to ignore: one, the authors’ tendency to proclaim opinion as logic (which is admittedly sometimes harder to ignore unless you already know the law and history) and, two, the text boxes annoyingly inserted amid the text—maybe the book ‘grades’ at a B+. And if you’ve had an excellent civics education, you might not need this at all. But understanding the federal Constitution is critical to law school, and since so few get that excellent background education, most will benefit a great deal by reading this book. For example, you ought to struggle with President Lincoln’s always-wrong-except-when-right ‘my interpretation of the Constitution is the only one that matters’ philosophy. (Oh, and you ought to subscribe to Disney+ for a month and watch the musical Hamilton. Seriously.)

If you do all that, you should be in great shape. But if you are still wanting more (impressive!), you could toss in something from…

The substantive law on which you’ll be focusing in your first year: contracts, torts, property, civil procedure, and the criminal law. There are books that try to do all of these together, but I’d instead pick one or two and use the relevant volume from the Understanding series to get that head start; for example, Understanding Criminal Law.

If you want a bit of the historical sense of law school, you might read The Paper Chase and/or One L, two stories (one fictional and one autobiographical) of law school of yesteryear. Despite the decades having passed—and yes much is different—you might also be surprised how much you still recognize during your attendance. As a warning, there are portions of The Paper Chase that might offend, and portions of One L that might cause bouts of drowsiness.

You might read The Legal Analyst: A Toolkit for Thinking About the Law, which has a wealth of good information yet is terribly hard to get through.

And you ought to read a great book or three, especially if you haven’t made the time to enjoy one in too long. Maybe Catch-22 by Joseph Heller, All the Wrong Questions by Lemony Snicket, The Catcher in the Rye by J.D. Salinger, Notes from the Underground by Fyodor Dostoevsky, David Copperfield by Charles Dickens, Empire Falls by Richard Russo, Fifth Business by Robertson Davies, I, Robot by Isaac Asimov, In Cold Blood by Truman Capote, Jude the Obscure by Thomas Hardy, Kite Runner by Khaled Hosseini, No Country for Old Men by Cormac McCarthy, A Painted House by John Grisham, A River Runs Through It by Norman Maclean, The Old Man and the Sea by Ernest Hemingway, 1984 by George Orwell, The Three Stigmata of Palmer Eldritch by Philip K. Dick, White Noise by Don DeLillo, or Siddhartha by Hermann Hesse. There is so much great content to read! If you only want to spend a little time, maybe choose a play like Death of a Salesman by Athur Miller, Our Town by Thornton Wilder, or A Streetcar Named Desire by Tennessee Williams. Or, you could do worse than go with Herman Melville’s Bartleby the Scrivener, which features a lawyer confronted with some hard questions…perhaps of how much we are our fellow human’s keeper…or how modern life can tend to dehumanize…or something else entirely. As in real life, what it’s about is for every reader to decide.

October 28, 2024 in Law School | Permalink | Comments (0)

Wednesday, October 23, 2024

So you want to go law school…

I went to law school back in the dark ages, but since I have recently looked more closely at the process of admissions, I thought I would share a few thoughts. Now, as Richard Feynman aptly warned, “I believe that a [professor] looking at non [professor] problems is just as dumb as the next guy.” Indeed. And it is hard to know who has the ‘right’ perspective when it comes to admissions, including because such a thing critically depends upon what is the question. The question might be anything from, ‘What does it take to get into law school X?’ to ‘Will I have a fulfilling life as a lawyer practicing Y after graduating from law school Z?’ So, again, merely a few thoughts…

First, how about U.S. News? Much ink has been spilled, so there is no dearth of easily-Googled opinions. I will merely say, then, that I think anyone would be a fool to ignore those rankings; they have run for decades and have had an outsized influence on law students during that entire period. Indeed, I can vividly remember one of my (dark ages) YLS profs bemoaning their existence precisely because they had transformed (in his view) the composition of students from a cohort that genuinely believed in the legal realist school to a cohort that crassly “chose number one.” Right or wrong, rankings matter, and those in U.S. News have been the most prominent. Besides, they provide a great deal of useful information—for example, looking at the statistics of the ‘top few’ schools, one can immediately see there is one (The University of Chicago) that does not play the yield games that the others do. Does that matter? That’s of course for each applicant to decide; but, sticking with the ‘Chicago school’ for a moment, more information tends to be a good thing, and this is indeed information.

So, as in most of life, you might wonder whether anyone really ought to complain quite so much, and you might really wonder at the source of who is complaining. Is it applicants struggling to make sense of a world of massive information overload? Or is it, say, a law school fearing that it might inevitably (and even rather soon) fall from the coveted number one spot it has held since the beginning, and thus cleverly attempting to ‘jump ship’ before that could ever happen? Or might it be an entire profession staring at a demographic cliff and a massive upsurge in societal dissatisfaction with higher education and its staggering costs, and fretting about the monetary impacts of its ranking position, especially as online education looms? In other words, consider the source.

Still, I’d advise an applicant use the rankings as you would any single metric in life: look at trends over time, not a single year (how terrible will you otherwise feel after enrolling and seeing a drop?), and realize these rankings are merely one datum in a complex calculus. There is no doubt they are wildly silly, as any law prof knows who has ‘helped’ U.S. News compose its list by ranking every single law school in America from 1 to 5. (Yup, seriously; that is “peer reputation.”) But what in this life is not rather wildly silly? And you can bet there tends to be strong correlation at law firms and elsewhere with those much-maligned rankings. So, again, it would be foolish to ignore them. Yet it would be equally foolish to think they will control your destiny—I’ll share a personal anecdote about that in just a bit.

Second, how about the LSAT? There are no longer logic games (a shame, really, as they are eminently gameable), but no matter what the LSAC tests, it’s a standardized test. And the typical advice seems to work: (1) practice a lot (this used to be on Khan Academy and is now moving to LawHub), and (2) if you can afford it, take a prep course that has been doing this for a long, long time, where here I’d nod to Kaplan. It would be wonderful if money didn’t matter in this, but then you could say that about most anything in this life. LSAC only gives away a sample; you get more by paying. As for test-prep companies, they routinely run ‘sales,’ so planning ahead might lower the price somewhat. And, at least if you are generally strong on standardized testing, I would not pay for one-on-one tutoring; if you go with a ‘tried and true’ company like Kaplan, the prepared materials will be ample. If, however, you struggle with standardized testing, then a tutor might help a great deal—but it could be any very good tutor in such testing, as basic testing skills are not at all unique to the LSAT.

It is hard to say too much more that isn’t specific to a single test-prep provider, but one thing seems universal—their modern formats can be overwhelming. (How delightful was a reasonably-sized, old-fashioned book with which you might start on page one and simply proceed?) But, again, at least with a provider ‘tried and true’ like a Kaplan, I would complete the core prepared units and practice—no skipping, and best done in the intended order. The course drafters hopefully considered which questions to include when, so you won’t see annoyingly repeated or incomplete information if you follow their schedule. If you jump around…well, then naturally there is no such guarantee. As for other content, such as “LSAT radio,” I would tend to avoid it as a waste of time. Again, stick to the ‘core,’ and then supplement as needed/desired with additional past LSAT questions. To be intentionally redundant, I have a single piece of strong advice: if possible, pay for ‘tried and true,’ as opposed to settling for ‘newer, cheaper, and gimmicky.’

Third, how about applications? Well, the LSAC Credential Assembly Service “simplifies the law school application process,” of course. Hah! Here is where we really had it good in the old days—application forms were filled in by typewriter, and you can bet they were short and succinct. One simple application and one simple personal statement, and you were done. Today, by contrast, where essay after essay inconveniences nobody but applicants and electrons? Any prospective law school applicant has seen this show before with undergraduate education and its misnamed “Common App.” So, there are schools for which application is a breeze—for example, The University of Chicago. And there are schools which make you retype every item in your resume into a unique format and require much more—here’s looking at you, my alma mater. In short, applications vary tremendously. But there are two core components into which you can invest a lot of time because they are sufficiently universal: a two-page personal statement and a two-page resume. Also, the admissions officers of some schools have produced podcasts, and so anyone particularly interested in such a school should give that a listen. But anybody not so particularly interested can probably skip it, because…

Fourth, how about admissions? Idiosyncratic. And let me just say that again: idiosyncratic. “Holistic” works like that. Some schools largely ‘follow the data’ and get out decisions in a timely manner (once again looking at UChicago). But other schools are swathed in mystery and eventually make decisions (once again looking at my alma mater). My strong sense, however, is that the mysticism is strongly skewed towards ‘the top.’ So, if you are shooting for a ‘top ten’ (or ‘T14’), be prepared to be mystified by the results—‘Why did I get in here and not there?’ Well, because a particular admissions counselor on a particular time on a particular day perceived it how he or she perceived it, in significant part on account of how that day happened to be going. C’est la vie. (Thus, for those shooting into the T14, one thing not worth a listen is where folks imagine you’ll be admitted.) But if you are looking at the mine run of law schools, you can probably predict results quite accurately so long as you know the data and put together a reasonably professional application.

Finally, does it matter? Of course. You will spend three years of your precious life there, and it will stick around on your CV ever after. So it goes. Still…it helps me to remember a student where I taught for a decade, at (lowly to U.S. News) Delaware Law in Wilmington, Delaware. This student ran for SBA president, and I remember this because I let him give a little spiel at the beginning of my class when running for said office, something I tried never to do. His plug began something like this: “I appreciate our school because it was the only one that admitted me.” So it goes. In a later term, I would award him his first (well deserved) ‘straight A’ of law school, I would coach he and his partner to victory in an interscholastic competition, and, dare I say it, we would, over time, become friends. Then he went on to achieve fame in a rather storied career … so he won’t return a text. So it goes. It ultimately doesn’t matter as much where you go to law school; it matters what you make of it when you are there.

And if you make it through the admissions gauntlet and accept a 1L spot, congratulations! Lawyers have always been maligned, but there is perhaps no better measure of a society than its law. I’ll separately post a few thoughts about what you might do to prepare for that first year.

October 23, 2024 in Law School | Permalink | Comments (0)

Sunday, October 6, 2024

Multipedia Post: Walgreens Security Guard Kills

Since 2009, I have shared multimedia teaching content at the Crimprof Multipedia; going forward, when I post new content there, I’ll try and also make a note of it here.  I will not, however, make an entire duplicate library of the multimedia content.  So, if you are interested in a particular post, you can go and grab it there.

https://crimprof.com/criminal-law/defenses/walgreens-security-guard-kills/

Category

Defenses, Pretrial

Tags

charging decision, common law, deadly force, defense of property, defenses, discretion, firearms, homicide, justification of law enforcement, murder, non-homicide crime, pretrial, prosecution role, self-defense, theft

Post

In April of 2023, amidst strong disagreement over how to handle retail theft in California, 33-year-old private security guard Michael Anthony was on shift at a Walgreens in San Francisco when he saw someone slip an item into a bag. A confrontation ensued, witnessed by bystanders and captured on CCTV, resulting in Anthony shooting (a single time) and killing 24-year-old Banko Brown. Here’s the video:

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Anthony easily satisfies the requirements of some form of criminal homicide, including murder—for example, intending to cause serious bodily injury, he caused the death of another human being. And of course defense of property never permits deadly force. So, it is a case for addressing the defense of law enforcement and self-defense.

As for law enforcement, the common law was of course generous and applied to us all, so the issues include whether and how California has narrowed that doctrine and whether it was reasonable to believe this deadly force necessary to arrest a felon. Petty retail theft would not begin as a felony, but did this become a robbery? If you teach like me, you won’t be as concerned with precisely how California has modified the doctrine, but rather with working through the types of changes commonly made by various states.

As for self-defense, could guard Anthony reasonably fear imminent serious bodily injury or death at the time he shoots? He claims Brown had repeatedly threatened to stab him, and that he thought “I was going to be stabbed.” Bystanders did not hear those threats, and police found no knife.

Beyond the substantive criminal law, it is a case for discussing prosecutorial discretion, with all the questions that naturally raises: Why do we permit prosecutors to make these choices? Is there a realistic better alternative? In this case, the prosecutor both released a written report and sat down for an interview regarding her charging decision:

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As of September 2024, no charges were filed and none were planned.

Another interesting topic might be the different bystander reactions, including a seeming lack thereof. What might these say about things?

October 6, 2024 in Criminal Law, Teaching | Permalink | Comments (0)

Carpenter AI-Generated Podcast

Google has released a rather amazing new generative AI tool, NotebookLM, into which you can upload any documents you’d like to make the subject of an AI-generated podcast.  Carpenter, as a case about technology changing antiquated Fourth Amendment law, seems appropriate fodder; so, here is what NotebookLM generated when I fed it the PDF of the Supreme Court’s opinion.

Carpenter v US by way of Google NotebookLM

You can spot the errors—and having students do the same might be a good class exercise—but it's rather impressive.

S.

 

October 6, 2024 in Cases of Interest, Crim Pro Investigation, Supreme Court, Teaching, Technology | Permalink | Comments (0)

CrimProf Blog Lives On

Thanks to Kevin for shepherding the blog over the years.  Now that he's turned the page, I've decided to make a go of building out this space—time will tell how it goes!  If you have thoughts regarding content you'd like to see, let me know.  I'll be simultaneously working content here in addition to my longstanding presence over at Crimprof, including its library of multimedia teaching modules.

S.

 

October 6, 2024 in About This Blog | Permalink | Comments (0)

Thursday, September 12, 2024

Farewell to CrimProf Blog

Since taking over editorship of CrimProf Blog on August 17, 2009, I’ve enjoyed helping my colleagues in the academy and beyond to keep up to date on news and legal scholarship about criminal law and procedure. Doing so has been a great way for me to stay abreast of the continual evolution of these fields, and I’ve enjoyed hearing from many of you over the years about your forthcoming publications. After 15 years of daily posts, I’ve decided to transition to other projects. This will be my last post on CrimProf Blog. There are no plans to continue the publication.

For those who have come to rely on CrimProf Blog to help them find materials, here are some links you may find helpful as replacements:

*For new SSRN postings about Criminal Procedure, look here.

*For new SSRN posting about Criminal Law, look here.

*For the top-ten recent SSRN downloads about Criminal Procedure, look here.

*For the top-ten recent SSRN downloads about Criminal Law, look here.

*For U.S. Supreme Court cert grants, look here; upcoming oral arguments and links to papers in pending cases can be found at that link by clicking on the “cases” tab at the top of the page.

*For news about the criminal justice system, you can find NACDL’s “News of Interest” page here.

Best wishes to all in the continuing search to understand and improve one of our most important institutions.

--KC

September 12, 2024 | Permalink | Comments (6)

Tuesday, September 10, 2024

Merchant on Judicial Discretion in Sentencing Under Plea Agreements

Sam J. Merchant (University of Oklahoma College of Law) has posted Plea Agreements and Suspending Disbelief on SSRN. Here is the abstract:
 
This Essay explores the traditional view that judges exercise broad discretion at sentencing after Booker. Around 98% of cases are resolved through guilty pleas, and at least 71% of those cases involve binding or nonbinding plea agreements, many of which stipulate to an exact sentence, guideline, or range. Parties sometimes collaborate to ensure that sentences fit within confabulated guideline ranges, and when a sentence falls within a guideline range, the U.S. Sentencing Commission never systematically collects data on the judge's reasons for the sentence. The absence of meaningful data on judges' reasons for two-thirds of federal sentences prevents thorough analysis of whether those sentences fulfill the intended purposes of punishment.

This Essay contributes new data on plea agreements for sentences within guideline ranges and suggests that parties drive more of federal sentencing than previously acknowledged. Judges' apparent complicity, particularly post-Booker, gives those sentences the cathartic gloss of Article III, maintaining a peculiar but potentially necessary framework of fictions in federal sentencing.

September 10, 2024 | Permalink | Comments (0)

"The Seemingly Endless Cycle of Reforms in Juvenile Justice"

From The Marshall Project, via NACDL's news update:

On Tuesday, Ohio Gov. Mike DeWine announced that the state will try to shut down its three large youth correctional facilities in favor of building smaller and less centralized units. DeWine cited findings that young people “do not respond well to adult-style incarceration,” Crain’s Cleveland Business reported.

. . . .

Los Angeles County may serve as a cautionary tale for Ohio. Four years ago, the county’s own juvenile justice working group made similar proposals in a plan called “Youth Justice Reimagined.” Like in Ohio, one of the centerpieces of the reform was to decentralize the county’s juvenile halls and replace them with “smaller, more homelike ‘safe and secure healing centers,’” according to the Pasadena Star-News.

Then last year the county reopened the previously shuttered Los Padrinos Juvenile Hall, reasoning that consolidating youths into the facility would let the county system operate more efficiently. Officials are still trying to lower the number of young people at the hall, but violence and drugs have proliferated, youths report feeling unsafe and the threat of another shutdown looms constantly.

September 10, 2024 | Permalink | Comments (0)

Monday, September 9, 2024

Noorda on Prison Labor in the Netherlands

Hadassa Noorda (University of Amsterdam) has posted 'Voluntary' Prison Labour in the Netherlands (forthcoming, European Labour Law Journal) on SSRN. Here is the abstract:
 
As of 2021, work in prisons in the Netherlands is voluntary, at least to some extent. In this article, I examine the protection of working prisoners' labour rights after the shift to a voluntary work scheme for prisoners in the Netherlands. Work in Dutch prisons may be freely chosen to some extent, but the Dutch scheme for work in prison raises questions about offenders' rehabilitation. Having work opportunities while in prison is said to contribute to the learning of skills, promote rehabilitation and societal reintegration and provide prisoners with income. However, prisoners in the Dutch prison perform their work for low pay and have limited meaningful options for the work they perform. This has a profound impact on their time in prison and on their reintegration into the labour market after having served their sentences. I argue that these issues demand an in-depth examination if prisoners' rights are to be protected. I describe working prisoners' labour rights in the Netherlands and address the normative question of the rights that working prisoners should have based on the principle that imprisonment itself is the punishment and that extensions of prison sentences in society are illegitimate. My proposal for considering the amendment of the approach to prison labour in the Netherlands aims to be useful for the analysis of prison labour in general.

September 9, 2024 | Permalink | Comments (0)

Crocker on Social Cost and The Fourth Amendment

Thomas P. Crocker (University of South Carolina School of Law) has posted The Fourth Amendment And The Problem Of Social Cost on SSRN. Here is the abstract:
 
The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept's meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their "substantial social costs." According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. Police illegality-the precondition for exclusion or damagesitself produces substantial social costs, especially when one considers the systemic effects of minor illegality on a community-wide scale. The Court does not currently take account of these social costs, raising the question: why not? Taking a cue from Professor Ronald Coase's famous analysis of the problem of social cost, this Article analyzes why it is necessary for the Court to refocus its social cost inquiry to include pervasive and corrosive social costs external to its present doctrinal focus. Surprisingly, given its analytic centrality, neither the Court nor commentators have clarified what "social cost" entails or how to calculate it. This Article takes up this task and charts the unexpected implications that would follow if the Court were to take its own commitment to minimize "social cost" seriously.

Continue reading

September 9, 2024 | Permalink | Comments (0)

Sunday, September 8, 2024

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Stopping Scams Against Consumers: Roadmap for a National Strategy

Independent
215
2.

An Open Letter to Law Students on the Death Penalty

DePaul University - College of Law and DePaul University
195
3.

Abolish Conspiracy

Northern Illinois University - College of Law
158
4.

Rights, Reasons, and Culpability in Tort Law and Criminal Law

Columbia Law School
141
5.

Rethinking the Role of Intentional Wrongdoing in Criminal Law

Columbia Law School
93
6.

Criminal Law's Hidden Consensus

Boston University School of Law
89
7.

MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT

Santa Clara School of Law
81
8.

Punishing Gender

University of Richmond School of Law
76
9.

From Visibility to Shadows: The Impact of Police Discretion on Prostitution in Response to Legal Changes

Harvard University - Harvard Law School, Princeton University, Princeton University and Stanford University - Centre on China’s Economy and Institutions
70
10.

A Specious Form of Judicial Restraint

George Mason University - Antonin Scalia Law School
69

September 8, 2024 | Permalink | Comments (0)

Saturday, September 7, 2024

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

AI-Assisted Police Reports and the Challenge of Generative Suspicion

American University Washington College of Law
489
2.

Loper Bright and the Great Writ: Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again? [Forthcoming in Columbia Human Rights Law Review, 2024]

Columbia University - Law School and New York University School of Law
323
3.

Prosecutor Transparency Project: Racial Disparities Study (Washtenaw County, Michigan)

Independent and University of Michigan Law School
308
4.

An Open Letter to Law Students on the Death Penalty

DePaul University - College of Law and DePaul University
195
5.

Criminal Law's Hidden Consensus

Boston University School of Law
89
6.

MODELING MEANING: CAUSAL INFERENCE UNDER THE CALIFORNIA RACIAL JUSTICE ACT

Santa Clara School of Law
77
7.

Punishing Gender

University of Richmond School of Law
76
8.

Urgent Issues and Prospects on Investigative Interviews with Children and Adolescents

McGill University, City University of New York (CUNY) - John Jay College, University of Massachusetts Lowell, Griffith University, University of California, Irvine, University of Ottawa, University of California, Davis, University of Cambridge, University of Toledo, University of Otago
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9.

The Victims' Rights Mismatch

University of Texas at Austin, School of Law
53
10.

A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance

University of Manitoba - Faculty of Law
52

September 7, 2024 | Permalink | Comments (0)

Friday, September 6, 2024

Byars on Recidivist Organizational Offenders

Kaleb Byars (Mercer University School of Law) has posted Recidivist Organizational Offenders and the Organizational Sentencing Guidelines on SSRN. Here is the abstract:
 
Despite recent Congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved. Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of organizational deferred prosecution agreements ("DPAs") and non-prosecution agreements ("NPAs"). These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants' criminal records, and they are used often in the organizational context.

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September 6, 2024 | Permalink | Comments (0)

"Can the city of Savannah fine or jail people for leaving guns in unlocked cars? A judge weighs in"

From AP, via NACDL's news update:

Savannah’s mayor and city council voted unanimously in April to outlaw keeping firearms in unlocked vehicles, with maximum penalties of a $1,000 fine and 30 days in jail. They said the law would make it harder for criminals to steal guns, and cited local police statistics showing more than 200 guns reported stolen last year from vehicles that weren’t locked.

. . . .

Chatham County Superior Court Judge Benjamin Karpf didn’t rule Wednesday on Belt’s motion to halt enforcement of the Savannah ordinance while considering his underlying lawsuit that seeks to have it thrown out permanently.

Monroe said Savannah’s ordinance should be voided because it violates a state law prohibiting local governments from regulating “the possession, ownership, transport, (or) carrying” of firearms.

September 6, 2024 | Permalink | Comments (0)

Thursday, September 5, 2024

Leshem on The Informational Role of Elevated Standards of Proof

Shmuel Leshem has posted The Informational Role of an Elevated Standard of Proof on SSRN. Here is the abstract:

This paper shows that an exacting standard of proof in criminal proceedings aligns prosecutors'information-gathering incentives with society's preferences. A conviction-oriented prosecutor must collect a random evidentiary signal before deciding whether to press charges against a suspect. Elevating the standard of proof above society's ex post optimal standard induces the prosecutor to collect a more informative signal, which reduces society's ex ante expected costs of errors. A higher standard of proof not only reduces the incidence of wrongful convictions, but may also increase the rate of rightful convictions.

September 5, 2024 | Permalink | Comments (0)

Franks on Non-consensual Pornography

Mary Anne Franks (George Washington University - Law School) has posted an abstract of The Criminalization of Non-consensual Pornography in the United States on SSRN. Here is the abstract:
 
The legal, technological, and social landscape of nonconsensual pornography in the United States has changed dramatically over the last decade. The number of U.S. states criminalizing the abuse as increased from three to 48; major social media and internet companies have banned nonconsensual pornography from their platforms and services; and nonconsensual pornography, now also commonly referred to ‘nonconsensual intimate imagery’ or ‘image-based sexual abuse’, is widely recognized as a form of abuse. This transformation is largely attributable to the efforts of courageous victims of this abuse and the civil society advocacy organizations that support them, in particular Dr. Holly Jacobs and the organization she founded in 2013, the Cyber Civil Rights Initiative (CCRI). But challenges remain. Because no federal law prohibiting this abuse has been enacted, and the definition and classification of nonconsensual pornography varies by jurisdiction, victims are left with an inconsistent and ineffective legal patchwork for this devastating and frequently multijurisdictional crime.

September 5, 2024 | Permalink | Comments (0)

Wednesday, September 4, 2024

Bland & Brooks on Criminalization of Sex Work

The District of Columbia has made significant investments in reducing violence and improving community health. DC implemented violence interruption programs and accountability mechanisms, reformed policing and trained in cultural competency, and increased access to health insurance for vulnerable communities of immigrants and homeless people. Despite their continued prioritization, violence and infectious disease continue to be major public health challenges, especially for DC’s Black and LGBTQ communities. There is considerable evidence from public health researchers that criminalization of sex work contributes to community violence, propagates crime, blocks access to public health resources, is an ineffective deterrent to participation in sex work, and is deeply harmful to sex workers.

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September 4, 2024 | Permalink | Comments (0)

"California Voters Have Some Choices on Crime in November"

Michael Rushford has this post at Crime & Consequences. In part:

An initiative addressing theft and drug abuse has qualified for California’s November 5 ballot, along with a ballot measure passed by the Legislature which increases the rights of prison inmates.

Proposition 36, is sponsored by the California District Attorneys Association and is supported by retailers, victims’ groups and most state law enforcement professionals. The measure changes several provisions of California Proposition 47, which converted thefts of $950 or less to misdemeanors, along with drug sales or possession, even if the offender has multiple priors. If adopted, Proposition 36 would strengthen penalties for habitual shoplifters and thieves, allowing an offender convicted of a third theft valued at less than $950 to be charged with a felony and sentenced to up to three years in state prison, depending on his criminal record.

 

September 4, 2024 | Permalink | Comments (0)

Tuesday, September 3, 2024

"Should police be able to interrogate kids alone? A growing number of states say no"

From NPR, via NADCL's news update:

That day, he didn’t ask for a lawyer, and he did talk. Studies show nearly all juveniles make the same choice: As many as 90 percent waive their Miranda rights. Yet legal experts say children and teenagers don’t understand the consequences of doing so.

Now, some states are working to fix that. In the last three years, at least four states — including CaliforniaMarylandNew Jersey and Washington — have passed laws banning police from interrogating children until that child has spoken to a lawyer. Illinois has introduced a bill broadening its protections for juveniles questioned by police, and other states – including New York and Minnesota – have introduced similar bills.

September 3, 2024 | Permalink | Comments (0)