CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	236	The Insanity Defense: Nine Myths that Will Not Go Away Michael L. Perlin New York Law School Date posted to database: 16 Jan 2016 [new to top ten]
2	165	The Constitution and Revenge Porn John A. Humbach Pace University School of Law Date posted to database: 22 Dec 2015 [first last week]
3	133	Neuroscience, Free Will, and Criminal Responsibility Stephen Morse University of Pennsylvania Law School Date posted to database: 9 Dec 2015 [2nd last week]
4	78	Addiction, Choice and Criminal Law Stephen Morse University of Pennsylvania Law School Date posted to database: 16 Dec 2015 [3rd last week]
5	70	Affirmative Consent Deborah Tuerkheimer Northwestern University - School of Law Date posted to database: 2 Jan 2016 [4th last week]
6	66	Consenting to Computer Use James Grimmelmann University of Maryland Francis King Carey School of Law Date posted to database: 5 Jan 2016 [8th last week]
7	65	Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket Myriam E. Gilles Benjamin N. Cardozo School of Law Date posted to database: 6 Dec 2015 [5th last week]
8	53	Commentary: Reflections on Remorse Stephen Morse University of Pennsylvania Law School Date posted to database: 4 Dec 2015 [7th last week]
9	49	Criminal Law and Common Sense: An Essay on the Perils and Promise of Neuroscience Stephen Morse University of Pennsylvania Law School Date posted to database: 19 Dec 2015 [new to top ten]
10	51	Two Views of First Amendment Thought Privacy Adam J. Kolber Brooklyn Law School Date posted to database: 18 Jan 2016 [new to top ten]

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	519	The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment James J. Duane Regent University - School of Law Date posted to database: 7 Jan 2016
2	188	What's Missing from Sexual Assault Prevention and Response Reggie D. Yager Government of the United States of America - Judge Advocate General’s Corps Date posted to database: 3 Dec 2015 [3rd last week]
3	132	Charging the Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons Neil L. Sobol Texas A&M University - School of Law Date posted to database: 16 Dec 2015 [5th last week]
4	127	Civil Forfeiture and the Constitution Caleb Nelson University of Virginia School of Law Date posted to database: 11 Dec 2015
5	120	Conviction Review Units: A National Perspective John Hollway University of Pennsylvania Law School - Quattrone Center for the Fair Administration of Justice Date posted to database: 24 Dec 2015 [10th last week]
6	119	Privacy in Public Spaces: What Expectations of Privacy Do We Have in Social Media Intelligence? Lilian Edwards and Lachlan Urquhart University of Strathclyde Law School and University of Nottingham, School of Computer Science Date posted to database: 16 Dec 2015
7	79	In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems Maximo Langer University of California, Los Angeles (UCLA) - School of Law Date posted to database: 17 Dec 2015 [9th last week]
8	76	Interrogation and False Confessions in Rape Cases Richard A. Leo University of San Francisco - School of Law Date posted to database: 9 Dec 2015 [new to top ten]
9	73	Some Facts About Life: The Law, Theory, and Practice of Life Sentences Melissa Hamilton University of Houston Law Center Date posted to database: 13 Dec 2015 [new to top ten]
10	73	Orwell's Elephant and the Etiology of Wrongful Convictions James M Doyle Bassil, Klovee & Budreau Date posted to database: 2 Jan 2016 [new to top ten]

Holden & Rodenberg on The Sports Bribery Act

John T. Holden and Ryan M. Rodenberg (Florida State University and Florida State University) have posted The Sports Bribery Act: A Law and Economics Approach (Northern Kentucky Law Review, Vol. 42, No. 3, 2015) on SSRN. Here is the abstract:

Sports bribery and match-fixing have become a part of the on-going sports news cycle. European and Asian match-fixing scandals in soccer, cricket and tennis have rocked the sports world recently. The 1919 Black Sox World Series scandal and the 1970’s Boston College point shaving incidents have illustrated that the manipulation of sporting events is a global scourge. This paper examines the corruption cases that led to the 1964 passage of the Sports Bribery Act (18 U.S.C. § 224). We discuss the scope of the statute, its operation with complementary and ancillary federal and state laws, and the reported instances of the statute’s application. The economic discussion focuses on Becker’s model for optimal deterrence, its application to the Sports Bribery Act, and an examination of the implications regarding the utility for would-be match-fixers. The paper concludes with a discussion of the challenges facing a policy change, including the complexity of regulating both professional and amateur sport, methods of detection, and jurisdictional issues raised by the global nature of match-fixing.

Death Penalty Symposium at Washington & Lee

The annual Lara D. Gass Symposium at the Washington and Lee University School of Law will focus this year on the controversial case of Joseph M. Giarratano, using his story to explore the ethical, legal and public policy issues surrounding the use of the death penalty. The event is scheduled for Feb. 5-6 in the Millhiser Moot Court Room, Sydney Lewis Hall on the campus of Washington and Lee University. Except for the evening keynote dinner, which is by invitation only, the symposium proceedings are free and open to the public.

Giarratano was convicted of murder in 1979, but after his story drew national and international attention raising questions about his guilt, his death sentence was commuted to life by then-Gov. L. Douglas Wilder in 1991. However, then-Virginia Attorney General Mary Sue Terry denied a new trial for Giarratano. You can read more about Giarratano in a recent Richmond Times-Dispatch story covering his case and the symposium. Giarratano’s case raises several issues about death penalty decisions, including ineffective assistance of counsel, clemency, post-conviction relief, actual innocence, prison conditions, race and gender and the use of the death penalty on those with mental illness or intellectual disability.

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Gutmann on The Political Economy of Death Penalty Abolition

Jerg Gutmann (University of Hamburg - Institute of Law and Economics) has posted Pulling Leviathan's Teeth – The Political Economy of Death Penalty Abolition on SSRN. Here is the abstract:

It is not immediately apparent why a state would willingly abolish the death penalty and thereby lose a powerful political instrument. The fact that some states abolish capital punishment while others retain it has thus far been explained by systematic differences in the values of politicians or citizens. An explanation of different behavior based on different preferences for such behavior is, however, largely tautological and not of much use to social science. This article proposes and empirically tests a political economy model in which rational politicians are more likely to abolish the death penalty when it is of no political use to them and if the process of abolition serves as a self-commitment in periods of transition. The results of estimating stratified Cox regression models show that the death penalty tends to be abolished particularly during periods of democratization and transitions to peace, but also that independence of the judiciary can encourage abolition. In contrast, military dictatorships are significantly more likely to retain capital punishment, as are countries with a common law legal system and those that are strongly politically influenced by Islam. These findings support the view that the abolition of capital punishment is at least partly motivated by rational political considerations.

Gur-Arye on Moral Panic and Criminal Justice

Miriam Gur-Arye (Hebrew University of Jerusalem - Faculty of Law) has posted The Impact of Moral Panic on the Criminal Justice System – Hit and Run Traffic Offenses as a Case Study (New Criminal Law Review (2016)) on SSRN. Here is the abstract:

The article reveals the relationship between the societal phenomenon of moral panic and the specific waves that it generates in the legal system. It focuses on hit and run traffic offenses and suggests that a moral panic with regard to these offenses uniquely impacted the Israeli criminal justice system during 2002-2013. The media generates concern, fear and outrage that are disproportionate to both the size and the nature of the offenses. In describing hit and run accidents, both the media and the courts demonize the drivers. Both the courts and the legislator react to the panic with disproportionally harsh punishments. The article also offers possible explanation as to why hit and run traffic offenses generated moral panic uniquely in Israel and why this occurred during the period 2002-2013. Although the article focuses on hit and run traffic offenses in Israel, it has more general implications: it reveals in detail the interaction between constructed public anxieties and systems charged with delivering justice.

Lipman on The Third Party Exception

Rebecca Lipman has posted The Third Party Exception: Reshaping an Imperfect Doctrine for the Digital Age (8 Harvard Law & Policy Review 471 (2014)) on SSRN. Here is the abstract:

The third party exception allows the government to access information that individuals share with other parties without a warrant. This includes sensitive information such as financial records and cellular location data. The third party exception is based on a 1979 Supreme Court case, Smith v. Maryland. Given the dramatic technological advancements that have occurred since 1979, the third party exception needs to be reexamined and reigned in to more accurately reflect Americans' privacy expectations under the Fourth Amendment.

Baude & Stern on The Positive Law Model of the Fourth Amendment

William Baude and James Y. Stern (University of Chicago - Law School and William & Mary Law School) have posted the abstract to The Positive Law Model of the Fourth Amendment
(129 Harvard Law Review (2016), Forthcoming) on SSRN. The entire paper is not available for download, but from the abstract:

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused but viable alternatives have been slow to emerge. This article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection depends on property law, privacy torts, consumer laws, eavesdropping and wiretapping legislation, anti-stalking statutes, and other provisions of law generally applicable to the private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly.

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Kolber on First Amendment Thought Protection

Adam J. Kolber (Brooklyn Law School) has posted Two Views of First Amendment Thought Privacy (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:

For centuries, our thought privacy has been reasonably well protected by the difficulty of deciphering other people’s thoughts. This natural protection is in jeopardy, however, as emerging technologies improve our ability to, loosely speaking, read minds. When these methods get cheaper and more accurate, the state may seek to monitor and regulate thought in ways previously impossible.

The First Amendment undoubtedly protects thought privacy, but current law leaves open two very different levels of protection: On one view, thought is only protected when intertwined with expression. If so, we have rather limited First Amendment freedom of thought, since thought often goes unexpressed. Alternatively, thought may be protected independent of expression. If so, we have more expansive First Amendment freedom of thought.

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Bowman on Federal Sentencing Reform Legislation

Frank O. Bowman III (University of Missouri School of Law) has posted Good Enough to Be Getting on With? The State of Federal Sentencing Reform Legislation, December 2015 (Federal Sentencing Reporter, Vol. 28, No. 105, 2015) on SSRN. Here is the abstract:

This Article addresses the current status of the push for federal sentencing and corrections reform, and describes and analyzes all of the major pieces of sentencing and corrections reform legislation pending in the United States Congress at the close of 2015. In particular, it considers the Justice Safety Valve Act of 2015, the Smarter Sentencing Act of 2015, the SAFE Justice Act of 2015, and the most likely candidate for passage -- the Senate's Sentencing Reform and Corrections Act of 2015 (SRACA) and its counterpart in the House. The Article discusses the merits and deficiencies of each bill, and estimates the likely effect of each on the population of current and future federal defendants and inmates.

The Article notes that the legislative proposals have become less expansive as the session has progressed, with each succeeding bill more cautious than the last. The final section of the Article considers whether the result of Congress's efforts will be worthy of support by those who favor significant federal sentencing and corrections reform. It concludes that, on balance, the front-end sentencing provisions of the legislation most likely to pass (SRACA) are "good enough to be getting on with," but that the back-end corrections measures with the most current legislative backing ought to be reconsidered and improved.

Zalman & Larson on Serial Crimes, Wrongful Convictions, and Police Investigation

Marvin Zalman and Matthew Larson (Wayne State University and Wayne State University) have posted Elephants in the Station House: Serial Crimes, Wrongful Convictions, and Expanding Wrongful Conviction Analysis to Include Police Investigation on SSRN. Here is the abstract:

In this article we advocate that the study of miscarriages of justice be expanded to view the entirety of police crime investigation as a source of wrongful convictions. We set this proposal in a framework of how the inductive innocence paradigm was developed and analyze how the term “causation” is used in legal, scientific and case analysis. We then explore a subject not yet addressed by wrongful conviction scholarship but that may confront an investigator: whether an unsolved crime is the work of a serial criminal and whether a suspect is the serial criminal. We examine a convenience sample of forty-four exonerees convicted of crimes committed by thirty serial criminals. The analysis is aimed at opening up a discussion of the kind of complexity that investigators face in hard-to-solve cases.

Perlin on The Insanity Defense

Michael L. Perlin (New York Law School) has posted The Insanity Defense: Nine Myths that Will Not Go Away (The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies (Mark D. White, Editor; Praeger, 2016 Forthcoming)) on SSRN. Here is the abstract:

Writing about the insanity defense over a quarter of a century ago, the author of this chapter stated: "Until we 'unpack' the empirical and social myths that underlie our misconceptions about the insane and the insanity defense and hold us in a paralytic thrall, we cannot begin to move forward." Some five years later, he began a full-length book on the insanity defense by alleging, "Our insanity defense jurisprudence is incoherent." Five years after that, he concluded that "we as a society remain fixated on the insanity defense as a symbol of all that is wrong with the criminal justice system and as a source of social and political anger." Returning to this issue two years ago, he concluded that "nothing has happened in the intervening decade to lead me to change my mind." The myths have stayed with us, and we willfully blind ourselves to the empirical and behavioral realities.

At the roots of this incoherence and fixation is our nation's irrational belief system in a series of myths about the defense, each of which has been discredited, yet each of which continues to dominate political and social discourse.

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Lewis on Active Pursuit and Inevitable Discovery

Reginald R. Lewis has posted A Common Sense Understanding of Inevitable Discovery: Why Nix v. Williams Does Not Require Active Pursuit in the Application of the Inevitable Discovery Doctrine on SSRN. Here is the abstract:

Suppose that an officer has the requisite probable cause necessary to obtain a search warrant to seize evidence, but seizes the evidence that a search warrant would have rendered before obtaining the warrant. Should the evidence that was seized be admissible under the theory of inevitable discovery? This question is ultimately answered depending on the jurisdiction’s position on “active pursuit.” The idea of active pursuit was born out of the facts of Nix v. Williams, and has caused a divide amongst the various circuits of the United States Court of Appeals. Some have required it while others have expressly held it unnecessary.

This article is the first draw upon the Court’s dicta from Hudson v. Michigan to advance the argument that active pursuit should not be required and that the inevitable discovery doctrine should be analyzed through a “but-for” causal analysis.

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Bean on FIFA

Bruce W. Bean (Michigan State University - College of Law) has posted An Interim Essay on FIFA's World Cup of Corruption: The Desperate Need for International Corporate Governance Standards at FIFA (ILSA Journal of International & Comparative Law, Vol. 22, 2016) on SSRN. Here is the abstract:

Played by hundreds of millions of people in every country in the world, from four-year old girls and boys to millionaire superstars, “football” (the term used throughout the world to refer to the game North Americans and Samoans call “soccer”) is unquestionably the world’s most popular sport. Since 1904 international football has been under the administration of the Fédération Internationale de Football Association, commonly known as FIFA, and now comprised of 209 national football associations.

In 1977 the Brazilian football legend, Pelé, published My Life and the Beautiful Game. The phrase “beautiful game” has long been synonymous with football. In 2014 a WikiLeaks-type whistleblower leaked “hundreds of millions” of documents to Heidi Blake and Jonathan Calvert, journalists at the London Sunday Times. Early in 2015 they published The Ugly Game: The Corruption of FIFA and the Qatari Plot to Buy the World Cup, describing a not-very-beautiful sport. A partial explanation for these different views is the increase in globalization and commercialization of football during the intervening four decades.

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"Will 'deal' with prosecutor sink Cosby case?"

From CNN.com:

And it seems that the terms of the verbal agreement were that if Cosby gave up his constitutional rights and gave deposition testimony in a civil case, there would not be a criminal case against him.

This is unfamiliar legal ground. Some say the "non-prosecution agreement" is unenforceable. As for me? It appears there was a valid non-prosecution agreement, or at least an enforceable promise not to prosecute. But, that doesn't mean that the court will dismiss the case.

The district attorney's office will argue that there was never any valid, binding non-prosecution agreement. It will claim that even if there were loose discussions about forgoing criminal charges, the non-prosecution agreement failed to comply with procedural criteria -- in other words, putting it in writing.

Opinion in computer access case holding that sufficiency claim measured against statute, not jury instructions, and that statute of limitations argument waivable

Justice Thomas delivered an opinion for a unanimous court in Musacchio v. United States.

Opinion giving retroactive effect on state collateral review to decision on mandatory life without parole for juveniles

Justice Kennedy delivered the opinion of the Court in Montgomery v. Louisiana. Justice Scalia filed a dissenting opinion joined by Justices Thomas and Alito. Justice Thomas also filed a dissenting opinion.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	142	The Constitution and Revenge Porn John A. Humbach Pace University School of Law Date posted to database: 22 Dec 2015
2	124	Neuroscience, Free Will, and Criminal Responsibility Stephen Morse University of Pennsylvania Law School Date posted to database: 9 Dec 2015
3	68	Addiction, Choice and Criminal Law Stephen Morse University of Pennsylvania Law School Date posted to database: 16 Dec 2015
4	66	Affirmative Consent Deborah Tuerkheimer Northwestern University - School of Law Date posted to database: 2 Jan 2016
5	62	Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket Myriam E. Gilles Benjamin N. Cardozo School of Law Date posted to database: 6 Dec 2015
6	53	Conceptualizing Rape as Coerced Sex Scott Allen Anderson University of British Columbia (UBC) - Department of Philosophy Date posted to database: 23 Nov 2015
7	52	Commentary: Reflections on Remorse Stephen Morse University of Pennsylvania Law School Date posted to database: 4 Dec 2015
8	46	Consenting to Computer Use James Grimmelmann University of Maryland Francis King Carey School of Law Date posted to database: 5 Jan 2016
9	45	Mens Rea and Mental Disorder Craig A. Stern Regent University School of Law Date posted to database: 15 Dec 2015
10	43	Federal White Collar Crime: Six Case Studies Drawn from Ongoing Prosecutions to Protect Public Health, Worker and Consumer Safety, and the Environment Rena I. Steinzor University of Maryland Francis King Carey School of Law Date posted to database: 25 Nov 2015

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	498	The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment James J. Duane Regent University - School of Law Date posted to database: 7 Jan 2016
2	294	The Path to Exoneration Jon B Gould and Richard A. Leo American University - School of Public Affairs and University of San Francisco - School of Law Date posted to database: 24 Nov 2015
3	183	What's Missing from Sexual Assault Prevention and Response Reggie D. Yager Government of the United States of America - Judge Advocate General’s Corps Date posted to database: 3 Dec 2015
4	122	Civil Forfeiture and the Constitution Caleb Nelson University of Virginia School of Law Date posted to database: 11 Dec 2015
5	116	Charging the Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons Neil L. Sobol Texas A&M University - School of Law Date posted to database: 16 Dec 2015
6	110	Privacy in Public Spaces: What Expectations of Privacy Do We Have in Social Media Intelligence? Lilian Edwards and Lachlan Urquhart University of Strathclyde Law School and University of Nottingham, School of Computer Science Date posted to database: 16 Dec 2015
7	100	Democratic Policing Barry Friedman and Maria Ponomarenko New York University School of Law and New York University School of Law Date posted to database: 25 Nov 2015
8	99	Negotiating Accuracy: DNA in the Age of Plea Bargaining Alexandra Natapoff Loyola Law School Los Angeles Date posted to database: 20 Nov 2015
9	79	In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems Maximo Langer University of California, Los Angeles (UCLA) - School of Law Date posted to database: 17 Dec 2015
10	114	Conviction Review Units: A National Perspective John Hollway University of Pennsylvania Law School - Quattrone Center for the Fair Administration of Justice Date posted to database: 24 Dec 2015

Aceves on Criminal Liability for Torture

William Aceves (California Western School of Law) has posted United States v. George Tenet: A Federal Indictment for Torture (New York University Journal of International Law and Politics (JILP), Vol. 48, No. 1, 2015) on SSRN. Here is the abstract:

This article examines the criminal liability of George Tenet, who served as the Director of Central Intelligence during the early years in the War on Terror. Tenet was responsible for the development of the CIA’s Detention and Interrogation Program and the use of enhanced interrogation techniques. These techniques, which included waterboarding, beatings, stress positions, and sleep deprivation, caused severe physical and psychological harm to detainees. Tenet personally authorized the use of enhanced interrogation techniques on “high value” detainees who were held at CIA black sites. He also received detailed reports documenting the interrogation sessions. The article proposes a federal criminal indictment of Tenet based on the torture of four detainees: Abu Zubaydah, Khalid Shaykh Muhammad, Abd al-Rahim al-Nashiri, and Ramzi Bin Al-Shibh. Tenet is charged with conspiracy to commit torture and four separate counts of torture under U.S. law. The indictment references evidence that appears in the December 2014 report by the Senate Select Committee on Intelligence regarding the CIA’s Detention and Interrogation Program and other declassified sources. Under the guise of enhanced interrogation techniques, Tenet subjected the detainees to horrific treatment. They were, in fact, tortured.