Wednesday, July 21, 2021
A central principle of U.S. law is that individuals should be judged in court based on their actions and not on their character. Rule 404 of the Federal Rules of Evidence therefore prohibits evidence of an individual’s previous acts to prove that the individual acted in accordance with a certain character or propensity. But courts regularly deviate from or altogether ignore this rule, resulting in arbitrary judgments based on an individual’s prior acts rather than on evidence regarding the events at issue in a case. This raises serious constitutional and fairness concerns, deepens racial and economic inequality in the criminal justice system, and creates a range of socially harmful incentives.
I address this problem from a new angle—a scientific one. I argue that a type of evidence that I refer to as “objective-chance evidence” is at the center of the unpredictability surrounding the rule against character evidence.
Continue reading
July 21, 2021 | Permalink
| Comments (0)
The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain evidentiary rules, and the application of preclusive or precedential weight to its resolution.
This Article seeks to bring theoretical coherence and analytical clarity to the law-fact distinction.
Continue reading
July 21, 2021 | Permalink
| Comments (0)
Tuesday, July 20, 2021
Courts frequently depart from Federal Rule of Evidence 404, which prohibits evidence of a person’s prior acts to prove that the person acted according to a certain character or propensity. This leads to verdicts that are unpredictable and based on behavior not at issue in a case. I develop a theory of “aggregation evidence,” which draws on principles of estimation and data aggregation in statistics and ties together evidence from a broad range of contexts. I apply this theory to analyze the effects of character evidence on accuracy, and to understand why and when courts depart from the rule against character evidence. I show that a type of character evidence that I call “objective-chance evidence” stands apart from other forms of character evidence in its ability to improve accuracy. I then argue that a formal exception for this type of evidence may hold the key to a more coherent rule.
Continue reading
July 20, 2021 | Permalink
| Comments (0)
Qualified immunity famously provides “ample protection to all but the plainly incompetent or those who knowingly violate the law.” The doctrine insulates officers who violate constitutional rights from civil liability unless existing caselaw was so “clearly established” that every reasonable officer would have known at the time that the police action in question was unlawful. This demanding inquiry requires a high degree of specificity; a prior case with what legal scholar Joanna Schwartz has called “virtually identical facts.”
At the same time, however, courts repeatedly refuse to provide specific definitions of the most important legal thresholds for police action: reasonable suspicion and probable cause. Indeed, the Supreme Court rejected—repeatedly—any attempt to quantify or carefully demarcate the boundaries of the Fourth Amendment standards of proof, except to emphasize that they require no more than a “fair probability” or a “moderate chance” that an officer’s suspicions are correct. As a result, the legal predicates for coercive or invasive police actions like detentions, frisks, searches, and arrests are not only deferential, they are operationalized at a low level of certainty.
Continue reading
July 20, 2021 | Permalink
| Comments (0)
Concepts of safety and prevention of danger pervade the criminal law canon. Arizona is no exception. The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose. The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions to release or detain pretrial. On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona’s sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.
Continue reading
July 20, 2021 | Permalink
| Comments (0)
This is a review of Katherine B. Forrest’s new book When Machines Can Be Judge, Jury, and Executioner. The book does an excellent job discussing issues of fairness and racial disparities from the use of artificial intelligence risk assessment tools (hereinafter “AI”) for decisions such as pretrial release and likelihood of recidivism. This is a timely topic as the technology is currently a tipping point. While Europe has begun to implement protections for defendants regarding AI, the U.S. is increasing its reliance on AI without such safeguards. This review includes a discussion on the topics of how AI compares to human judge predictions and decisions, fairness and racial outcomes, how recidivism is frequently misunderstood and its relevance, how human decisions are inextricably intertwined with AI, and the proper understanding of an AI’s “error rate.”
July 20, 2021 | Permalink
| Comments (0)
Monday, July 19, 2021
Abhinav Sekhri has posted The Bailable v. Non-Bailable Classification in Indian Criminal Procedure (3 GNLU Law & Socy. Rev. 56 (2021)) on SSRN. Here is the abstract:
This essay intends to describe how Indian criminal procedure arrived at it current legal position on the issue of bail. It illustrates the intention of the legislatures which presided over amendments at different points in time, both pre and post India’s independence, and then uses this history to explain how the system presently operates. After extracting the core assumptions that underpin the current bail regime, the essay takes on what it identifies as the twin pillars of bail jurisprudence: classification of offences as bailable vs. non-bailable, and the unfettered discretion that judges are conferred to decide bail pleas.
July 19, 2021 | Permalink
| Comments (0)
From The Crime Report, via NACDL's news-of-interest:
The study examined trends of people arrested in Illinois for the use of a firearm in the commission of a violent crime, the unlawful discharge of a firearm and the illegal possession of a firearm using data primarily from the Criminal History Record Information.
. . . .
Given this data, the researchers conclude that Illinois sentencing laws should be restructured to eliminate mandatory prison sentences or narrowly restrict them due to the high costs of prison versus probation.
In conjunction with this, sentencing criteria should focus on an individual’s criminal history that puts them at a higher risk of recidivism in regard to violent crime.
July 19, 2021 | Permalink
| Comments (0)
Sunday, July 18, 2021
are here. The usual disclaimers apply.
| Rank |
Paper |
Downloads |
| 1. |
Georgetown University - Center for Clinical Bioethics and Assistant Professor
|
224 |
| 2. |
University of North Carolina School of Law and University of North Carolina School of Law
|
189 |
| 3. |
University of Iowa - College of Law
|
156 |
| 4. |
University of Wisconsin Law School
Date Posted: 22 Apr 2021 [5th last week]
|
121 |
| 5. |
Fordham University School of Law
Date Posted: 24 May 2021 [6th last week]
|
66 |
| 6. |
University of Houston Law Center
Date Posted: 15 Jun 2021 [7th last week]
|
61 |
| 7. |
University of Notre Dame Law School
Date Posted: 18 May 2021 [new to top ten]
|
36 |
| 8. |
University of California, Berkeley - School of Law
Date Posted: 19 Apr 2021 [new to top ten]
|
33 |
| 9. |
Instituto de Historia
Date Posted: 14 May 2021 [new to top ten]
|
25 |
| 10. |
Law Office of Margaret Love and Collateral Consequences Resource Center
Date Posted: 23 Jun 2021 [new to top ten]
|
21 |
July 18, 2021 | Permalink
| Comments (0)
Saturday, July 17, 2021
are here. The usual disclaimers apply.
| Rank |
Paper |
Downloads |
| 1. |
Harvard Law School
|
269 |
| 2. |
University of Alberta - Faculty of Law and University of Alberta - Faculty of Law
|
135 |
| 3. |
University of the Highlands and Islands (UHI)
Date Posted: 10 May 2021 [4th last week]
|
106 |
| 4. |
University of Chicago Law School
Date Posted: 28 May 2021 [5th last week]
|
97 |
| 5. |
Seton Hall Law School, University of Pennsylvania Law School and ASU School of Criminology and Criminal Justice
Date Posted: 19 Apr 2021 [7th last week]
|
72 |
| 6. |
The Pennsylvania State University (University Park) – Penn State Law
|
72 |
| 7. |
King's College London - The Dickson Poon School of Law
Date Posted: 27 Apr 2021 [9th last week]
|
70 |
| 8. |
Cornell Law School
Date Posted: 23 Apr 2021 [new to top ten]
|
60 |
| 9. |
Department of Law
Date Posted: 14 May 2021 [new to top ten]
|
56 |
| 10. |
University of Illinois College of Law
Date Posted: 10 Jun 2021 [new to top ten]
|
50 |
July 17, 2021 | Permalink
| Comments (0)
Friday, July 16, 2021
There has long been recognition that the criminal legal system has great difficulties in ascribing responsibility to corporations for harms caused and crimes committed. This article turns to the film Aliens (1986) to enrich the corporate criminal law imaginary. This articles argues that the film Aliens delivers a complex representation of the evil corporation Weyland Yutani and a depressing, realistic depiction of our (low or lack of) expectations of law and justice for corporations. The film portrays the dehumanising effects of the corporate form, an entity with legal personality but with almost no interest in humanity except as a means of labour and profit. Aliens depicts the routinization of harms, whereby the harms of Weyland Yutani are rendered banal and normal and not even categorised as criminal but just part of doing business. Despite holding up untrammelled rapacious inhuman exploitativeness for critique - no solution is proffered or even suggested. Aliens bleakly portrays the consequences of the legal failure of imagination in conceptualising and attributing corporate responsibility. If law continues to regard corporations as monstrous, incomprehensible and capable of great systemic harms, then law can and should import the insights of horror and use extreme measures to resolve the corporation. Alternatively, we can recognise corporations as a fiction of our own creation and change the story and genre of corporations away from horror, and rewrite the corporation.
July 16, 2021 | Permalink
| Comments (0)
Can governments purchase user records as an end-run around the warrant requirement imposed by Carpenter v. United States? As a matter of Fourth Amendment law, the answer is “yes.” Companies have common authority over their business records. Common authority allows companies to consent to a government search of their databases even when their users oppose it. A voluntary sale manifests consent, permitting the government to buy access to Carpenter-protected records without a warrant or cause. Arguments exist for why a different rule may be justified someday. But for now, and for the foreseeable future, Fourth Amendment law permits buying business records even if users have rights in those records.
July 16, 2021 | Permalink
| Comments (0)
This article illustrates a simple risk of algorithmic risk assessment tools: rigging. In 2017, U.S. Immigration and Customs Enforcement removed the “release” recommendation from the algorithmic tool that helped officers decide whom to detain and whom to release. After the change, the tool only recommended detention or referred cases to a supervisor. Taking advantage of the suddenness of this change, I use a fuzzy regression discontinuity design to show that the change reduced actual release decisions by about half, from around 10% to around 5% of all decisions. Officers continued to follow the tool’s detention recommendations at almost the same rate even after the tool stopped recommending release, and when officers deviated from the tool’s recommendation to order release, supervisors became more likely to overrule their decisions. Although algorithmic tools offer the possibility of reducing the use of detention, they can also be rigged to increase it.
July 16, 2021 | Permalink
| Comments (0)
Theorists of criminal law widely agree that state punishment involves harsh treatment and stigma and that states must therefore provide protections for targeted individuals. But certain regulatory measures can also be used to impose harsh treatment and stigma. This paper addresses the stigmatic impact of harsh regulatory measures. It argues that harsh regulatory measures that label targeted individuals as risky impose a stigma that has the potential to significantly affect these individual’s personal and professional relationships. Such measures include area restrictions applied to alleged terrorists and registration requirements for convicted sex offenders. I recommend ways of implementing legal safeguards for targeted individuals against the stigma involved in the employment of such measures.
July 16, 2021 | Permalink
| Comments (0)
This report from the Collateral Consequences Resource Center summarizes legislative efforts and executive orders to reduce barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. In 2019, 43 states, D.C., and the federal government enacted an extraordinary 153 laws to restore rights and opportunities to people with a record.
Continue reading
July 16, 2021 | Permalink
| Comments (0)
Thursday, July 15, 2021
Following the January 6, 2021 attack on the U.S. Capitol, elected officials and terrorism experts renewed previous calls for Congress to pass a domestic terrorism statute to empower the federal government to pursue white supremacists and other domestic terrorists. However, the debate over whether the federal government needs additional powers to investigate and prosecute domestic terrorism has been hampered by the absence of a full account of the federal government’s existing authorities in this area.
To that end, this article has two purposes. First, it provides a comprehensive summary of the federal government’s powers over the chronological lifespan of a domestic terrorism case, as well as an account of how the government has used these powers in the past. This summary demonstrates that the Executive branch has significant discretion to define and pursue domestic terrorists with limited oversight from the judiciary or Congress. Second, this article urges a reconsideration of the debate surrounding a domestic terrorism statute. Rather than addressing whether the government’s existing powers are sufficient, this article contends that these authorities give the government too much latitude to pursue domestic terrorists. Given the federal government’s history of surveilling, harassing, and prosecuting dissident groups, the current political moment is ripe for civil liberties infringements, as diffuse protest movements across the political spectrum risk being labeled and prosecuted as domestic terrorists. The federal government’s discretionary use of its authorities against ill-defined political groups creates the potential for it to classify political speech and acts of protest as domestic terrorism.
July 15, 2021 | Permalink
| Comments (0)
From Bloomberg Law, via NACDL's news-of-interest:
President Joe Biden’s judicial nominees with public defender backgrounds are being “singled out for extra criticism” during the confirmation process, a coalition of more than 50 legal groups, including multiple state criminal defense organizations, said in a letter to Senate Judiciary Committee leaders.
The letter, sent Wednesday, follows questions from Judiciary Committee Republicans about whether public defenders and criminal defense lawyers would be able to handle the more general docket of a federal court or be fair-minded.
July 15, 2021 | Permalink
| Comments (0)
Among government officials, police have a near monopoly on the use of physical force and the greatest incentive to hide their motives. An expansive interpretation of Caniglia v. Strom, the recent Supreme Court decision rejecting a freestanding caretaker exception, would help curb both police misuse of force and police use of pretexts to pursue illegitimate agendas, because it would limit police-initiated searches and seizures purporting to be for benign purposes. It might also provide doctrinal support for the fledgling movement to de-police those government services that, whatever might be the tradition, do not require the intervention of armed individuals trained to fight crime. It may be that, outside of real emergencies, the last thing we want police to do is function as “caretakers” of the community.
July 15, 2021 | Permalink
| Comments (0)
Wednesday, July 14, 2021
Hannah Bloch-Wehba (Texas A&M University School of Law) has posted
Transparency's AI Problem (
Knight First Amendment Institute and Law and Political Economy Project's Data & Democracy Essay Series, 2021) on SSRN. Here is the abstract:
A consensus seems to be emerging that algorithmic governance is too opaque and ought to be made more accountable and transparent. But algorithmic governance underscores the limited capacity of transparency law—the Freedom of Information Act and its state equivalents—to promote accountability. Drawing on the critical literature on “open government,” this Essay shows that algorithmic governance reflects and amplifies systemic weaknesses in the transparency regime, including privatization, secrecy, private sector cooptation, and reactive disclosure. These deficiencies highlight the urgent need to reorient transparency and accountability law toward meaningful public engagement in ongoing oversight. This shift requires rethinking FOIA’s core commitment to public disclosure of agency records, exploring instead alternative ways to empower the public and to shed light on decisionmaking. The Essay argues that new approaches to transparency and accountability for algorithmic governance should be independent of private vendors, and ought to adequately represent the interests of affected individuals and communities. These considerations, of vital importance for the oversight of automated systems, also hold broader lessons for efforts to recraft open government obligations in the public interest.
July 14, 2021 | Permalink
| Comments (0)
Tuesday, July 13, 2021
From The Crime Report, via NACDL's news-of-interest:
In Connecticut, the supermax Northern Correctional Institution has now shut its doors for good, transferring inmates to new facilities around the state, hoping to close the chapter on Northern’s documented harmful practices against inmates. But instead of turning over a new leaf in different facilities, transferred prisoners say cell modifications are underway to resemble Northern all over again — particularly additions of “four-point restraint beds,” the CT Mirror details.
July 13, 2021 | Permalink
| Comments (0)
