CrimProf Blog

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	371	Gifts, Hospitality & the Government Contractor  Jessica Tillipman  The George Washington University Law School  Date posted to database: 18 Jul 2014
2	285	The Consequences of Error in Criminal Justice  Daniel Epps  Harvard Law School  Date posted to database: 9 Jul 2014
3	254	Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health  Scott Cunningham andManisha Shah  Baylor University and UCLA School of Public Affairs  Date posted to database: 19 Jul 2014
4	161	The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime' Michal Gilad  University of Pennsylvania Law School  Date posted to database: 19 Jul 2014 [5th last week]
5	137	Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons  Joan Petersilia and Francis T. Cullen  Stanford University and University of Cincinnati  Date posted to database: 24 Jun 2014 [4th last week]
6	136	Morse, Mind, and Mental Causation  Michael S. Pardo and Dennis Patterson  University of Alabama School of Law and European University Institute  Date posted to database: 17 Jul 2014 [8th last week]
7	132	Moneyball Sentencing  Dawinder S. Sidhu  University of New Mexico - School of Law  Date posted to database: 12 Jul 2014 [6th last week]
8	131	White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence  Lucian E. Dervan  Southern Illinois University School of Law  Date posted to database: 28 Jun 2014 [7th last week]
9	120	State Law Reporting and Disclosure Mandates Under ERISA  Albert Feuer  Law Offices of Albert Feuer  Date posted to database: 16 Jul 2014
10	196	Why on Earth Do People Use Bitcoin?  Catherine Martin Christopher  Texas Tech University School of Law  Date posted to database: 25 Jul 2014 [new to top ten]

"Keeping the Police Honest"

Slate has a piece discussing how police react to being recorded and expressing skepticism about whether imcreased use of body cams would dampen inappropriate activity:

At the moment, there’s an activist and citizen drive for police departments to use body cameras to record all interactions between officers and the public. The idea is that an “objective” source of information could act as a check on police behavior, as well as evidence when there’s an incident. But absent a policy shift for law enforcement, this isn’t a panacea. “Because police departments would ultimately be in charge of storing, analyzing, and disseminating body cam footage, concerns arise over whether if the footage would be disclosed and left untampered,” notes Lauren C. Williams for ThinkProgress.

"New App Lets Bay Area Commuters Silently Report Crime"

From FindLaw. In part:

The Bay Area Rapid Transit (BART) has released a new mobile app that allows riders to discreetly report criminal activity on the trains.

BART Watch, available on iTunes and Android in English, Spanish, and Chinese, empowers users to snap photos or send quick texts to BART police rather than try to call 911 or run to a train's intercom. BART spokeswoman Alicia Trost told SFGate that it's "sort of like texting police," and you can even do it anonymously.

Fisher, Faigman & Appelbaum on Psychiatric Evidence

Carl E. Fisher , David L. Faigman and Paul S. Appelbaum (Columbia University - New York Presbyterian Hospital , University of California Hastings College of the Law and Columbia University) have posted Toward a Jurisprudence of Psychiatric Evidence: Examining the Challenges of Reasoning from Group Data in Psychiatry to Individual Decisions in the Law on SSRN. Here is the abstract:

Psychiatry is an applied science. It thus shares the characteristic of all applied science in that it is ultimately applied at two levels – general and specific. Scientific research inevitably focuses on aggregate data and seeks to generalize findings across persons, places or things. However, in the courtroom, as is true in other applied settings, the focus is usually on an individual case. Thus, psychiatry presents the challenge inherent in all scientific evidence of reasoning from group data to an individual case, which is termed the “G2i problem.” But psychiatry, unlike many scientific fields that come to court, also confronts the G2i problem in its daily practice, since mental health professionals routinely diagnose and treat individuals based on aggregate data. Yet approaches to the G2i problem in clinical psychiatry do not necessarily fully align, or fit, the uses to which it is put in the courtroom.

In this Article, we employ the G2i lens to examine the admissibility of psychiatric expert testimony, both as regards general research findings – or “framework evidence” – and the application of those general findings to specific cases – or “diagnostic evidence.”

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Steel on Social Context and Teaching Criminal Law

Alex Steel (University of New South Wales (UNSW) - Faculty of Law) has posted Broader Social Context as a Lens for Learning: Teaching Criminal Law (Disciplines : the lenses of learning. Ed. Kathryn Coleman and Adele Flood. Common Ground Publishing, 2013) on SSRN. Here is the abstract:

This chapter considers how best to teach criminal law in broader social contexts and beyond a focus on positivist doctrinal accounts. It provides examples of how broader social science research could be included within a criminal law curriculum.

"This is your federalism on drugs"

Jonathan Adler has this post at The Volokh Conspiracy. In part:

Earlier this year, the House of Representatives voted to cut off Drug Enforcement Administration funding for raids on medical marijuana dispensaries in states where medical marijuana is legal.  The measure passed with the support of 49 Republicans.  This is a significant increaseover the last time such a limitation on the DEA had been proposed, when only 28 Republicans supported respecting state choices on medical marijuana, but it still represents less than one-quarter of the GOP caucus.  So many Republicans who believe it’s federal overreach when federal law regulates health insurance or power plant emissions think its just fine when the federal government prohibits the possession of a plant, even where authorized under state law.

Villalobos, Davis & Leo on Honest False Testimony Regarding Sexual Offenses

J. Guillermo Villalobos , Deborah Davis and Richard A. Leo (University of Nevada, Reno , University of Nevada, Reno and University of San Francisco - School of Law) have posted Honest False Testimony in Allegations of Sexual Offences (in Ros Burnett, ed., Wrongful Allegations of Person Abuse (Oxford Univ. Press, 2015 Forthcoming)) on SSRN. Here is the abstract:

This chapter aims to provide a general review of factors that can lead to honest false testimony by either party to cases involving disputed sexual consent. We focus on three issues. First, we review the inherently and deliberately ambiguous nature of many sexual communications. That is, sexual communication often takes place indirectly, in ways that allow for multiple interpretations of meaning (e.g., via hints, nonverbal communication, lack of resistance rather than explicit consent, etc.). Second, we discuss the vagaries of memory for consent interactions. Given the ambiguity of initial consent interactions and the context in which they are later recalled, memory can be predictably distorted such that each party honestly remembers the same interaction differently. Third, we consider the implications of the involvement of intoxication in many disputed sexual encounters. Collectively, these factors pave the way for misinterpretation, miscommunication and false "gist" (or fully fabricated) memories for what took place: a state of affairs that can lead both parties report honest, but completely different accounts of the events in question.

Davis-Nozemack & Webber on Tax Whistleblowers

Karie Davis-Nozemack and Sarah Webber (Georgia Tech - College of Management and University of Dayton) have posted Lost Opportunities: The Underuse of Tax Whistleblowers on SSRN. Here is the abstract:

Legal literature on whistleblower programs often assumes an agency’s ability to effectively use a whistleblower tip. This article challenges that assumption in the context of tax enforcement by exposing the Internal Revenue Service’s under-performance. The article uses Fourth Amendment jurisprudence, taxpayer privacy law, as well as whistleblower and tax enforcement literature to propose a new approach to using information from tax whistleblowers.

"Ivory Tower Academics and Police Use of Force"

Kent Scheidegger at Crime & Consequences criticizes Erwin Chemerinsky's recent NYT op-ed on qualified immunity. His critique of  a Chemerinsky critique:

Shooting out the tires is an "obvious" alternative?  Sure, it has worked on every cop TV show I have seen it tried on.  In the real world, things aren't quite so obvious.  Go back to your ivory tower, dean, and leave police work to people who know what they are doing.

There is a case to be made for adjustments to the civil liability of police officers and police departments.  In particular, Chief Justice Burger's long-shelved suggestion of expanded liability for Fourth Amendment violations in return for scrapping the exclusionary rule deserves to be taken out and reconsidered.  But Plumhoff doesn't support the case.

"America's Lack of a Police Behavior Database Is a Disgrace. That's Why I'm Leading a Team to Build One"

The story is at The New Republic. In part:

Progressive leaders in law enforcement have recently called on researchers at the Center for Policing Equity (CPE) to create the first national database on police behavior. That means we will know how many people are stopped, and how often force is used—and against whom. With the help of the National Science Foundation, the Department of Justice, and several philanthropic associations, the goal is to begin issuing reports from the database two years from now, perhaps even sooner. As a lead investigator of the database and president of CPE, I am excited about the insights we can gain about race and policing once we finally create an honest accounting of the issues. I am, like so many others though, troubled by why it has taken this long to make a plan to fix such a long-lasting problem.

Roach on Terrorism Prosecutions

Kent Roach (University of Toronto - Faculty of Law) has posted Be Careful What You Wish for?: Terrorism Prosecutions in Post-9/11 Canada ((2015) 34 Queens Law Journal Forthcoming) on SSRN. Here is the abstract:

The criminal law, particularly in Canada, is significantly more restrained and more just than indeterminate immigration detention accompanied by the threat of deportation to torture and the use of secret evidence not disclosed to the detainee. Nevertheless, this insight does not mean that “charge or release” or the “criminal law solution” does not carry its own fair share of often under-appreciated dangers. Many of these dangers occur at pre and post trial stages of prosecutions that are often ignored in criminal law scholarship. The dangers of the criminal law approach to terrorism examined in this article include widespread use of preventive detention and reverse onuses at bail, a reluctance to use stays of proceedings to provide protection against entrapment of the accused or non-disclosure to the accused of relevant but unused information, legislative overbreadth in creating terrorism offences and the danger of disproportionate punishment of those convicted of terrorism offences that may only have a remote connection to actual terrorist violence.

Holland on Criminal Procedure Last Term

Brooks Holland (Gonzaga University School of Law) has posted Criminal Procedure in the October 2013 Term: Cell Phones and Some Other Stuff (41 Preview 321 (2014)) on SSRN. Here is the abstract:

This brief article reviews the U.S. Supreme Court's criminal procedure decisions in the October 2013 Term. Cases reviewed include:

- Kaley v. United States (pre-trial forfeiture and the right to counsel).
- Kansas v. Cheever (self-incrimination and mental health examinations). 
- Fernandez v. California (third-party consent to search).
- Navarette v. California (anonymous 911 calls and reasonable suspicion). 
- Riley v. California (warrantless searches of cell phones incident to arrest).

Davis & Leo on False Confessions of Sexual Abuse

Deborah Davis and Richard A. Leo (University of Nevada, Reno and University of San Francisco - School of Law) have posted When Exoneration Seems Hopeless: The Special Vulnerability of Sexual Abuse Suspects to False Confession (Ros Burnett, ed., Wrongful Allegations of Person Abuse, Oxford Univ. Press, 2015, Forthcoming) on SSRN. Here is the abstract:

This chapter considers sources of vulnerability among innocent sexual abuse suspects to police-induced false confession. We suggest that sexual abuse suspects may be particularly vulnerable to false confession, primarily as a result of their enhanced sense of hopelessness that they might be believed or be able to establish their innocence. Moreover, we suggest this sense of hopelessness derives largely from two factors: first, their perception of the evidentiary situation they face; and, second, stereotypes associating fathers, step-fathers, priests, boy scout leaders, day care personnel and others with sexual abuse. That is, we suggest sexual abuse claims are often characterized by (1) seemingly credible claims of one or more victims, (2) against a suspect whose social category is consistent with stereotypes of sexual abusers, (3) lack of concrete physical evidence that could exonerate the suspect, and (4) testimony of professional and nonprofessional witnesses in seeming support of the occurrence of the abuse and/or the suspect’s guilt that likewise cannot be refuted by concrete evidence. Sexual abuse suspects may therefore be less likely than most other innocent suspects to expect (a) that their claims of innocence will be believed in the absence of concrete proof of innocence, (b) that there will be a way to prove their innocence, or even (c) that there will be a way to effectively cast doubt on the validity of the alleged victim(s)’ claims of guilt or other apparently abuse supportive testimony. A primary goal of interrogation tactics is to instill in suspects such a sense of hopelessness, which then makes it easier for the interrogator to convince the suspect that confession will result in better legal outcomes than denial. For many sexual abuse suspects this goal may have been effectively met before they enter interrogation.

Garrett on Big Data and Due Process

Brandon L. Garrett (University of Virginia School of Law) has posted Big Data and Due Process (Cornell Law Review Online, Vol. 99, 2014) on SSRN. Here is the abstract:

Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. By the same token, individuals may be falsely implicated due to errors in large government or commercial databases, and evidence of innocence may linger in such archives without ever coming to light. Professors Joshua Fairfield and Erik Luna and have done an important service by carefully introducing the problem of “digital innocence” and marking out areas in need of clear thinking and policy. In this online response to their wonderful piece, I discuss four additional problems at the intersection of big data and due process rights: (1) the need for developed electronic discovery rules in criminal cases; (2) the need to reconsider the meaning of Brady v. Maryland and the due process obligations of prosecutors and government agencies in the context of government data; (3) the parallel need to reconsider standards for effective assistance of defense counsel; and (4) the need for broader and better-adapted postconviction electronic discovery and remedies.

Brown on Penal Moderenism

Darryl K. Brown (University of Virginia School of Law) has posted Penal Modernism in Theory and Practice on SSRN. Here is the abstract:

This paper develops three observations triggered by Whitman's account of penal modernism; all relate to criminal law in the context of American politics and criminal justice. One suggests why "judicial conscience," which Whitman describes as playing a central role in penal modernism, may be more problematic in the U.S. than Europe. The second speculates that certain barriers to penal modernism in U.S. political and legal culture are less significant than they seem. Finally, I question the extent to which retributivism displaced penal modernism and suggest a lesson this may hold about criminal law theory in the political and policymaking arena.

Lasch on State Postconviction Remedies for Ineffective Crimmigration Counsel

Christopher N. Lasch (University of Denver Sturm College of Law) has posted Redress in State Postconviction Proceedings for Ineffective Crimmigration Counsel (63 DePaul L. Rev. 959 (2014)) on SSRN. Here is the abstract:

In its 2010 decision in Padilla v. Kentucky, the Supreme Court held the Sixth Amendment right to counsel encompasses what can properly be termed the right to effective “crimmigration” counsel — counsel on whether a guilty plea is accompanied by a risk of deportation. But in 2013, the Court took a step back from Padilla. Although most Padilla claims are properly brought after the expiration of direct review, in Chaidez v. United States the Court held Padilla announced a “new rule” of constitutional criminal procedure that would not be retroactively applied to cases already final on direct review. Essentially, Padilla would apply only prospectively, to guilty pleas entered after Padilla’s announcement.

State courts, however, are free to craft their own rules for determining when the violation of a new constitutional rule will entitle a defendant to redress in state postconviction proceedings.

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"Does the federal computer hacking law apply to a laptop not connected to the Internet?"

Orin Kerr has this post at The Volokh Conspiracy, discussing a recent district court case holding that the act does not apply but concluding, "As much as I favor narrow readings of the CFAA, I think the court was incorrect. Unfortunately, the CFAA is so broad it includes pretty much every computer, connected to the Internet or not."

Wagner on Criminal Corporate Character

Robert E. Wagner (City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law) has posted Criminal Corporate Character (65 Florida Law Review 1293 (2013)) on SSRN. Here is the abstract:

In the last few years, corporations have been accused of crimes ranging from environmental pollution on an unprecedented scale, to manslaughter, to election tampering, to large-scale antitrust violations. Many of these accused companies had previously committed similar acts or even the exact same offense. Unfortunately, the rules of evidence in the federal system and in virtually every state system prohibit the use of this information in a prosecution for such crimes. The reasons for this prohibition are based in historical anomalies, a mistaken understanding of corporate function, and a misplaced anthropomorphism of the corporation. This combination of errors has resulted in the questionable practice of excluding relevant evidence in cases where the justifications for exclusion are either nonexistent or weak and the benefits of admitting the evidence clearly prevail. This Article demonstrates the fallacies of this continued practice and argues in favor of change. Specifically, this Article shows why evidence concerning the character of a corporation should be allowed in criminal settings to prove that the corporation acted in conformity with that character on the date in question. Courts so far have not given much consideration to the question and have simply assumed that the character evidence rules apply to corporations. I base my objections to this practice on the goals of corporate criminal liability, the inherent weaknesses of the character evidence rules generally, and the way in which corporate structure exacerbates those weaknesses. Lawyers should argue that the character evidence rules do not apply to corporations, judges should decide accordingly, and legislatures should amend both the Federal Rules of Evidence and their state counterparts to make it unambiguously clear that corporations are not covered by the same principles regarding character as individuals.

Barkow & Osler on Clemency

Rachel E. Barkow and Mark William Osler (New York University School of Law and University of St. Thomas - School of Law (Minnesota)) have posted Restructuring Clemency: The Cost of Ignoring Clemency and a Plan for Renewal (University of Chicago Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:

Over the past three decades, the pardon power has too often been ignored or used to create calamities rather than cure them. Our most recent Presidents seem to realize the system is not working only at the end of their time in office, when they feel safe in giving grants but become aware of the fact that the system does not produce many recommendations for doing so even when asked. As a key constitutional power, clemency deserves to be more than an afterthought to a presidential term. 

The use of the pardon power is a necessary element in a fully-functioning system of criminal law. Recent presidents, however, have largely ignored this powerful tool, even as some have sought to expand the power of the office in other ways. This essay seeks both to describe the costs of this trend and to propose important structural reforms to reverse it.

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"Lennon’s Killer Is Again Denied Parole"

From The New York Times:

The parole board wrote to Mr. Chapman, 59, that it had concluded that if he were to be released, he would again break the law.

“This victim had displayed kindness to you earlier in the day,” it added, “and your actions have devastated a family and those who loved the victim.”

At his previous hearing in 2012, Mr. Chapman described how Mr. Lennon had agreed on the day of the killing to autograph an album cover for him. “He was very kind to me,” Mr. Chapman said.