CrimProf Blog

Rowe on Cyberthefts of Trade Secrets

Elizabeth A. Rowe (University of Florida - Levin College of Law) has posted RATs, TRAPs, and Trade Secrets on SSRN. Here is the abstract:

Technology has facilitated both the amount of trade secrets that are now stored electronically, and the rise of cyber intrusions. Together, this has created a storm perfectly ripe for economic espionage. Cyber misappropriation from American companies is a growing concern. Cases involving unknown or anonymous offenders who may not be in the United States and who steal trade secrets using remote access tools (RATs) are especially problematic. What makes the problem urgent, elusive, and significant is that we do not appear to have any effective judicial or legislative tools with which to address it. This Article is the first to address and place trade secret misappropriation within the larger backdrop of cyber security. 

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"Gerry Adams, Sinn Fein Leader, Won’t Face Prosecution Over 1972 Murder"

From The New York Times:

Northern Ireland’s public prosecution service said that it would not bring charges against Mr. Adams, or six others who had been questioned by the police, because there was little hope of securing a conviction in the case that continues to haunt Sinn Fein after 43 years.

. . .

Two senior I.R.A. activists told researchers working on a historical project sponsored by Boston College that Mr. Adams had given the order for Mrs. McConville’s abduction and murder. The two have since died.

. . . 

The researchers had promised the participants that their testimony would remain sealed until after their deaths, but a United States court ruled in 2013 that the police in Northern Ireland should be allowed to listen to the tapes.

"Germany prosecutor investigating former VW CEO"

From Jurist:

The Braunschweig public prosecutor's office [official website, in German] opened acriminal investigation [press release, in German] Monday of former Volkswagen CEO Martin Winterkorn [Forbes profile], following accusations that the company cheated on government emissions tests by manipulating exhaust valves. The investigation will focus on determining who was responsible for the cheating scandal, but no further information was released. The manipulations were done on diesel vehicles worldwide through the use of "defeat devices" [DW report], which were fitted onto the vehicles. According to reports the software was able to recognize when a vehicle was being tested and reduced emissions during the test, but the vehicles actually emitted up to 40 times more nitrogen oxide than allowed under US law.

Burke on Consent Searches

Alafair S. Burke (Hofstra University - Maurice A. Deane School of Law) has posted Consent Searches and Fourth Amendment Reasonableness (67 Fla. L. Rev. 509 (2015)) on SSRN. Here is the abstract:

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of reasonableness in the Court’s consent jurisprudence is helpful in explaining the puzzling disconnect between language and doctrine, much of this current emphasis has been distorted by the dichotomy between coercion and voluntariness: Did police use (unreasonable) coercive tactics that would override a (reasonable) person’s free will? However, the Fourth Amendment’s default concept of reasonableness is based not on coercion or volition but on its requirement of a warrant based on probable cause. Typically when the Court recognizes an exception to the default rule, it grounds that exception in a concept of reasonableness that requires a weighing of the governmental interests served by the warrantless conduct against the level of the intrusion on affected Fourth Amendment interests: liberty and privacy. Because the Court has relied on the myth of voluntary consent as a proxy for the warrant and probable cause requirements that normally define “reasonableness” in the Fourth Amendment context, the Court has bypassed the usual substitute proxy for Fourth Amendment reasonableness: an express weighing of the governmental and citizen interests at stake.

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Kamin on The Last Stand Against State Marijuana Legalization

Sam Kamin (University of Denver Sturm College of Law) has posted The Battle of the Bulge: The Surprising Last Stand Against State Marijuana Legalization (45(3) Publius: The Journal of Federalism 427 (summer 2015)) on SSRN. Here is the abstract:

Although marijuana possession remains a federal crime, twenty-three states now allow use of marijuana for medical purposes and four states have adopted tax-and-regulate policies permitting use and possession by those twenty-one and over. In this article, I examine recent developments regarding marijuana regulation. I show that the Obama administration, after initially sending mixed signals, has taken several steps indicating an increasingly accepting position toward marijuana law reform in states; however the current situation regarding the dual legal status of marijuana is at best an unstable equilibrium. I also focus on what might be deemed the last stand of marijuana-legalization opponents, in the form of lawsuits filed by several states, sheriffs, and private plaintiffs challenging marijuana reform in Colorado (and by extension elsewhere). This analysis offers insights for federalism scholars regarding the speed with which marijuana law reform has occurred, the positions taken by various state and federal actors, and possible collaborative federalism solutions to the current state-federal standoff.

Temkin on Death Penalty Abolition in Transatlantic Perspective

Moshik Temkin (Harvard University - Harvard Kennedy School (HKS)) has posted The Great Divergence: The Death Penalty in the United States and the Failure of Abolition in Transatlantic Perspective on SSRN. Here is the abstract:

This essay analyzes the persistence of the death penalty in the United States – a topic that has long been the subject of debate among legal scholars, social scientists, and historians. Adopting a comparative framework by focusing on the United States and France (the last Western European country to abolish the death penalty), this essay argues that the best explanation for the divergence in the practice of the death penalty between the two countries can be found in the very different histories, meanings, and practical applications of death penalty abolitionism. Whereas abolition in France (as elsewhere in Europe) was a political, top-down process, framed in normative terms, decided at the national level, and enshrined in supranational treaties, the abolitionist cause in the United States has been primarily legal, procedural, and decentralized. This divergence should also be understood in the context of a broader divide – whereas in Europe, human rights have been a binding principle for policymaking and political belonging, in the United States human rights are applied for the wider world but not for domestic affairs. The essay concludes with implications for thinking about the relationship between the transatlantic history of abolition and its prospects in the United States, arguing that abolitionism should be understood, and proceed, in terms that are political and normative rather than legal and procedural.

Bagaric & Alexander on Sentencing and Offender Profile

Mirko Bagaric and Theo Alexander (Deakin University - Deakin Law School and Deakin University - Deakin Law School) have posted First-Time Offender, Productive Offender, Offender with Dependants: Why the Profile of Offenders (Sometimes) Matters in Sentencing (Albany Law Review, Vol. 78, No. 2, 2015) on SSRN. Here is the abstract:

Should a single mother of four young children who commits theft be sentenced to a lesser sanction than a woman who commits the same crime but has no dependants? Should a billionaire philanthropist be sentenced to a lesser penalty than the average citizen for assaulting a random bystander? Should a first-time thief receive a lighter sanction than a career thief for the same theft? The relevance of an offender’s profile to sentencing is unclear and is one of the most under-researched and least coherent areas of sentencing law. Intuitively, there is some appeal in treating offenders without a criminal record, or those who have made a positive contribution to society, or who have dependants, more leniently than other offenders. However, to allow these considerations to mitigate penalty potentially licenses them to commit crime and decouples the sanction from the severity of the offense, thereby undermining the proportionality principle. This article analyzes the relevance that an offender’s profile should have in sentencing. We conclude that a lack of prior convictions should generally reduce penalty because the empirical data shows that, in relation to most offenses, first-time offenders are less likely to reoffend than recidivist offenders. The situation is more complex in relation to offenders who have made worthy social contributions. They should not be given sentencing credit for past achievements given that past good acts have no relevance to the proper objectives of sentencing and it is normally not tenable, even in a crude sense, to make an informed assessment of an individual’s overall societal contribution. However, offenders should be accorded a sentencing reduction if they have financial or physical dependants and if imprisoning them is likely to cause harm to their dependants. Conferring a sentencing discount to first-time offenders and those with dependants does not license them to commit crime or unjustifiably encroach on the proportionality principle. Rather, it recognises the different layers of the legal system and the reality that sentencing law should not reflexively overwhelm broader maxims of justice, including the principle that innocent people should not suffer. This article argues that fundamental legislative reform is necessary to properly reflect the role that the profile of offenders should have in the sentencing regime.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	759	The Worst $90,000 Ever Spent: Ten Questions About Mike Duffy, Nigel Wright, the Criminal Code and the Canadian Criminal Justice System  Peter Sankoff  University of Alberta - Faculty of Law  Date posted to database: 22 Aug 2015 [2nd last week]
2	276	An Economic Understanding of Search and Seizure Law  Orin S. Kerr  The George Washington University Law School  Date posted to database: 21 Jul 2015 [4th last week]
3	274	Breaking Bad: Are Meth Labs Justified in Dry Counties?  Jose M. Fernandez, Stephan Gohmann and Joshua C. Pinkston  University of Louisville - Department of Economics, University of Louisville - College of Business - Department of Economics and University of Louisville Date posted to database: 26 Aug 2015 [new to top ten]
4	216	Ultracrepidarianism in Forensic Science: The Hair Evidence Debacle David H. Kaye  Penn State Law  Date posted to database: 21 Aug 2015 [new to top ten]
5	196	Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW — What Would Jurors Want? — A Federal Trial Judge's View  Mark W. Bennett  U.S. District Court (Northern District of Iowa)  Date posted to database: 28 Aug 2015
6	196	American Criminal Record Exceptionalism  Kevin Lapp  Loyola Law School Los Angeles  Date posted to database: 3 Sep 2015
7	165	Human Rights Obligations for Non-State-Actors: Where are We Now?  Andrew Clapham  Graduate Institute of International and Development Studies  Date posted to database: 12 Aug 2015 [new to top ten]
8	157	Risk Assessment in Criminal Sentencing  John Monahan and Jennifer L. Skeem  University of Virginia School of Law and University of California, Berkeley  Date posted to database: 17 Sep 2015 [new to top ten]
9	155	Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism  Dustin A. Lewis, Naz K. Modirzadehand Gabriella Blum  Harvard Law School Program on International Law and Armed Conflict (PILAC), HLS Program on International Law and Armed Conflict and Harvard Law School  Date posted to database: 8 Sep 2015
10	151	Speech: The Legal Status of Fantasy Sports in a Changing Business Environment  Marc Edelman  City University of New York - Baruch College, Zicklin School of Business  Date posted to database: 25 Aug 2015 [7th last week]

Jefferson-Bullock on Compassionate Release of Terminally Ill Offenders

Jalila Jefferson-Bullock (Arizona Summit Law School) has posted Are You (Still) My Great and Worthy Opponent?: Compassionate Release of Terminally Ill Offenders (University of Missouri-Kansas City Law Review, Vol. 83, No. 3, 2015) on SSRN. Here is the abstract:

Compassionate release is rooted in the notion that changed circumstances post-conviction may render a criminal sentence inhumane, excessive, unjust, and, therefore, unwarranted. Compassionate release provides for the early release of prisoners for “extraordinary and compelling” reasons, which may include terminal illness, debilitating medical condition, age, and unique family caregiving duties. When a prisoner becomes terminally ill, compassionate release allows him to spend his last days on earth, in his own home, surrounded and supported by family and friends. In such situations, the justice system recognizes that radically changed circumstances have transformed the offender into a shadow of his former self, a less worthy opponent, with whom battle is neither fair nor necessary.

Capers on Regulating Prosecutors in Plea Bargaining

I. Bennett Capers (Brooklyn Law School) has posted The Prosecutor’s Turn (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

Many criminal justice advocates have heralded Lafler v. Cooper and Missouri v. Frye as game changers when it comes to plea bargaining law. My interest is in shifting the focus somewhat. Lafler and Frye certainly signal an increased attention to the regulation of defense counsel in criminal cases, as did an earlier case, Padilla v. Kentucky. But what about prosecutors? For the most part, prosecutors remain under-examined and under-regulated. Put differently, the problem brought to the fore in Lafler and Frye — the failure of defense counsel to properly advise their clients of plea offers — is not the only problem in this new, old world of negotiated pleas. With Lafler and Frye, there will now be more judicial oversight of defense counsel when it comes to plea negotiations. But if judges are watching defense counsel, who is watching prosecutors?

This symposium essay makes the argument for more regulation of prosecutors during the plea bargaining stage. I suggest that the next goal of “plea-bargaining” law should be to remedy this lack of oversight, and offer the Due Process Clause, and to a lesser extent internal and external regulation, as one possible route for getting there.

Rothstein on Evidence of Nonconviction Misconduct

Paul F. Rothstein (Georgetown University Law Center) has posted Comment on Prof. Imwinkelried's 'Formalism V. Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching Untruthful Acts that Have Not Resulted in Conviction': Just What Evidence of Witness Misdeeds Does Federal Evidence Rule 608(B) Exclude? --- Imwinkelried vs. Rothstein (Creighton Law Review, Forthcoming) on SSRN. Here is the abstract:

Prof. Edward Imwinkelried, one of the country’s most renowned Evidence scholars, in a recent article in this journal, perceptively identifies three specific examples of evidence of a witness’s prior unconvicted - for misconduct which he correctly believes should be admissible to impeach the witness’s credibility in the discretion of the trial judge: 

1. Evidence of demonstrably false previous accusations of rape against the present defendant by the complaining witness in a rape prosecution (assuming the rape shield would not exclude) which the witness will not admit to during cross examination;
2. Documentary evidence proving an unrelated misdeed of a testifying witness clearly evincing the witness’s lack of credibility, where the witness himself on cross exam could authenticate the document so it could be used conveniently and expeditiously without undue time consumption; and
3. Evidence of the result in an unrelated previous civil action, for example where the witness was a party and an adverse verdict clearly establishes his position was fabricated, or where he was only a witness but the verdict makes it clear the trier of fact rejected his contention as fabricated.

I agree with Prof Imwinkelried that these can be powerful pieces of evidence on occasion and should be admissible in the judge’s discretion upon consideration of such factors as probative value on the issue of the witness’s credibility, time consumption, and prejudice. But Prof. Imwinkelried and I disagree as to whether the literal language of Federal Rule of Evidence 608(b) bans them absolutely. Prof. Imwinkelried believes it does, and therefore should be amended. I believe it does not and therefore does not require amendment.

Cassidy on Silencing Grand Jury Witnesses

R. Michael Cassidy (Boston College Law School) has posted Silencing Grand Jury Witnesses (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:

The investigations of local police officers for causing the deaths of unarmed civilians in Ferguson, Missouri and Staten Island, New York have generated significant national discourse about the fairness and transparency of grand jury proceedings. This article addresses one crucial aspect of this ongoing debate; that is, whether witnesses before the grand jury should be allowed to talk to each other and to the media about the contents of their testimony. 

In the federal system and in the majority of states that still employ the grand jury as an investigative and charging tool, obligations of grand jury secrecy do not extend to the witnesses themselves. Only persons performing an “official function” before the grand jury are typically covered by the oath of secrecy. Absent a contract or court order, grand jury witnesses are free to talk with each other and to the media. Nevertheless, prosecutors often seek to handcuff grand jury witnesses in talking to others about their testimony by drafting one-sided cooperation agreements that impose obligations of confidentiality on grand jury witnesses in exchange for charging or sentencing concessions. Courts on occasion also impose gag orders on grand jury witnesses as part of formal immunity orders. In this article, the author argues that such efforts by prosecutors and courts to impose secrecy obligations on grand jury witnesses violate attorney discipline rules and the First Amendment. As importantly, they impede the target’s access to information essential to enable him to marshal a defense, thus undermining the grand jury’s historic function as a shield against unfounded prosecutions.

"Mother of Patrick Kane’s Accuser Lied About Evidence Tampering, District Attorney Says"

This bizarre story is from The New York Times:

At a news conference at his office, the district attorney, Frank A. Sedita III, broke a self-imposed public silence to describe the mother’s claims that she had found an evidence bag on her doorstep as an “elaborate hoax.” The revelation was the second bizarre turn in 48 hours for a high-profile investigation that has been beset by leaked details and lurid news reports.

After meeting with investigators from the district attorney’s office Thursday night, Thomas Eoannou, the lawyer for Kane’s accuser, abruptly resigned, citing concerns about whether his client’s mother had misrepresented how she came to possess an evidence bag. In quitting the case, he essentially disavowed claims he had made one day earlier.

"Massachusetts Senate unanimously repeals drug-related driver's license suspension law"

From Jurist:

The Massachusetts state Senate [official website] unanimously passed [docket] aresolution [text] Thursday to repeal a law requiring a driver's license suspension of at least six months for anyone convicted of a drug crime. The law required the driver's license suspension in all circumstances of drug offenses, even if unrelated to vehicle operation. The bill, brought at the initiative of Senator Harriette Chandler[official profile], also includes a record expungement provision for past driver's license suspensions under the law, and is viewed as a step towards criminal justice reform in Massachusetts. The news was shared [tweet] by the official Twitter page of the Massachusetts Senate [social media website] with the hashtag CJreformMA.

Jones & Ginther on Law and Neuroscience

Owen D. Jones and Matthew R. Ginther (Vanderbilt University - Law School & Dept. of Biological Sciences and Vanderbilt University - Law School) have published Law and Neuroscience (International Encyclopedia of Social and Behavioral Sciences (2nd Edition, 2015)) on SSRN. Here is the abstract:

This encyclopedia entry discusses how the intersection of perennial legal questions and new neuroscientific advances has fueled the emergence of a new field: Law & Neuroscience. It provides an overview of issues, discussing both the promise and the limitations.

Peters & Lex on Improving Insanity Aftercare

Amanda J. Peters and Indira Azizi Lex (South Texas College of Law and Independent) have posted Improving Insanity Aftercare (William Mitchell Law Review, Vol. 42, 2016 Forthcoming) on SSRN. Here is the abstract:

Conditional release programs for insanity acquittees have remained the same in most jurisdictions for the past two decades despite newer, available therapeutic models. While aftercare models were created in the 1980s and early 1990s, newer treatment models arose later. For example, the first mental health courts came into existence in the late 1990s. Assertive care treatment (ACT) and the treatment of an offender's criminogenic needs are also newer models related to treating criminal offenders with mental illness. It is possible that combining these newer models with traditional insanity aftercare programs would produce better long-term results.

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Bagaric on Prior Convictions in Sentencing

Mirko Bagaric (Deakin University - Deakin Law School) has posted The Punishment Should Fit the Crime - Not the Prior Convictions of the Person that Committed the Crime: An Argument for Less Impact Being Accorded to Previous Convictions in Sentencing (San Diego Law Review, Vol. 51, No. 2, 2014) on SSRN. Here is the abstract:

The seriousness of the offense is the main consideration that should determine the severity of criminal punishment. This cardinal sentencing principle is undermined by the reality that often the criminal history of the offender is the most decisive sentencing consideration. Recidivists are frequently sent to imprisonment for long periods for crimes, which, when committed by first offenders, are dealt with by a bond, probation or a fine. This makes sentencing more about an individual’s profile than the harm caused by the offending and has contributed to a large increase in prison numbers. Intuitively, it feels right to punish repeat offenders more harshly; however, the search for a sound doctrinal or normative reason to justify this approach has proven to be elusive — and there is certainly no demonstrated basis for according considerable weight to prior criminality in the sentencing calculus in relation to all offenses. Moreover, the practice of punishing recidivists more harshly is potentially discriminatory because poor people are more likely to have prior convictions. This Article argues that prior criminality should have far less relevance to sentencing. Previous convictions should only increase penalties in a meaningful sense when they relate to serious sexual or violent offenses. In such circumstances the premium should be in the order of no more than twenty to fifty percent. This reform would lower prison numbers, reduce the discriminatory effect of current sentencing practices, but not impair the efficacy of the sentencing system to achieve any of its key objectives.

"Fifth Amendment protects passcode on smartphones, court holds"

Orin Kerr has this post at The Volokh Conspiracy. In part:

I think the Huang court is wrong because the government did not seek an order forcing the defendants to hand over records of insider trading. If that had been the order, the ruling would be correct. The defendants would have a clear Fifth Amendment privilege, and the “foregone conclusion” doctrine would not apply. If that were the case, the government would be relying on the defendants to tell the government what investigators are trying to figure out: whether any records of insider trading are on the phone, and where on the phone they can be found. That’s not a foregone conclusion, so the government can’t make the defendants do that work for them.

This case is different, however, because the government is seeking an order to obtain the passcodes. 

"Daily Fantasy Sports and the Hidden Cost of America’s Weird Gambling Laws"

From The New York Times:

What I found is the strange hypocrisy and inconsistency around gambling that is embedded in United States law. The rules actively work against the interests of casual sports fans and low-stakes gamblers like me who just want to make the games more interesting.

The very complexity and opacity that make daily fantasy sports legal also make it more likely that the casual fan will lose money.

"European Advocate General: transfer of EU user data violates privacy laws"

The story is at Jurist:

The advocate general of the European Court of Justice [official website] proclaimed [opinion; press release, PDF] on Wednesday that the copious amount of EU user data transferred to the US by various technology companies violates EU's data protection and rights to privacy laws. The Luxembourg court's advocate general Yves Bot suggested that the court do away with the "Safe Harbor" rules [backgrounder] that have spurred controversy in the wake of Edward Snowden's [BBC backgrounder] whistleblower situation from last year. US technology behemoths like Twitter, Facebook and Uber already have a huge presence in Europe so the amount of data being exchanged between the two constituencies is only increasing. The advocate general critiqued the commission for not uncovering how the Safe Harbor provisions were developed and for allowing data transfers to continue. The data transfers of EU citizen data to US mass surveillance systems goes against the EU's Charter of Fundamental Rights [official website].