Tuesday, August 31, 2021
From Jurist:
The Cook County Circuit Court in Illinois denied Clearview AI’s motion to dismiss an ACLU privacy lawsuit on Friday. Clearview AI (“Clearview”) is an American facial recognition company founded in 2017. The company sells access to over three billion indexed images to law enforcement and commercial organizations. Access allows for individuals to match provided photographs with others found online and find identifying information about individuals in the picture.
Plaintiffs, the ACLU joined by four other organizations, allege that Clearview has violated the Illinois Biometric Information and Privacy Act (BIPA). BIPA requires private entities to inform individuals who have their biometric data collected. Moreover, BIPA requires “written release executed by the subject of the biometric information” as well as information regarding storage, purpose, and length of the collection to be furnished to that subject. Plaintiffs seek an order requiring Clearview to destroy the collected information. They also seek Clearview’s future compliance with BIPA, as well as attorneys’ fees and costs.
August 31, 2021 | Permalink
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Eric Waage has posted Protection of Witnesses and Sensitive Information in U.K. Criminal Prosecutions (22 SAN DIEGO INT'L L.J. 277 (2021)) on SSRN. Here is the abstract:
This Article examines the film Closed Circuit, as it portrays the legal issues surrounding a British judge’s decision to hold a hearing in camera. As in the United States, holding in camera hearings safeguards the use of witnesses and protects confidential information before it is shared with all parties to a criminal case or the jury. Closed Circuit accurately portrays some aspects of the United Kingdom’s legal standards that govern these hearings including the judicial deference to the Crown’s national security interests, the appointment of cleared special counsel to represent the accused, and the use of pseudonyms to protect witnesses in open court. The film depicts a complicated relationship that arises out of the government’s use of an informant. The informant is the son of an accused criminal who sells materials used in a deadly terrorist attack. The next section will present a description of the United Kingdom’s distinctive procedure regarding in camera hearings. The sections that follow discuss the film and the accuracy of its portrayal of the U.K. legal system.
August 31, 2021 | Permalink
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Eugene Volokh has this post at The Volokh Conspiracy. In part:
At times courts do refuse to allow such speech as evidence, especially when the speech is seen as having relatively little probative value. The reason isn't the First Amendment as such, but rather the rules of evidence, such as the rule that evidence should be excluded if its probative value is substantially outweighed by its tendency to create unfair prejudice against the defendant, or that "prior bad acts" evidence should usually be excluded if the jury is likely to use the evidence to infer a propensity for the crime (as opposed to showing a motive, intent, or other matters)—the very issue in this case.
. . . . So how should that evidentiary rule (the federal Rule 403) be applied here? It does seem to me that the first video has considerable probative value; and while it may be used to paint the defendant in a bad light, I don't think that's unfair prejudice. I'm also inclined to say that the other two videos would also be admissible, especially since Rule 403 asks whether the probative value is substantially outweighed by the tendency to create unfair prejudice.
August 31, 2021 | Permalink
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Monday, August 30, 2021
Today, more than ever, law enforcement has access to massive amounts of consumer data that allow police to, essentially, pluck a suspect out of thin air. Internet service providers and third parties collect and aggregate precise location data generated by our devices and their apps, making it possible for law enforcement to easily determine everyone who was in a given area during a given time period. Similarly, search engines compile and store our internet searches in a way that allows law enforcement to learn everyone who searched for specific keywords like an address or the word “bomb.” And DNA is now amassed in consumer genetic genealogy databases that make it possible for law enforcement to identify almost any unknown person from their DNA, even if the unknown person never chose to add their own DNA to the database.
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August 30, 2021 | Permalink
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From Courthouse News Service, via NACDL's news-of-interest:
The California Supreme Court upheld a death sentence Thursday that establishes precedent about whether jury unanimity and reasonable doubt standards are intertwined in California sentencing law.
“We have previously held that jury unanimity on the existence of aggravating circumstances is not required under the state constitution,” wrote Justice Goodwin Liu on behalf of the unanimous court.
Later in the opinion, Liu discussed whether reasonable doubt instructions play a role for juries when finding the death penalty is warranted.
“The authorities cited by McDaniel and amici suggest that the ultimate penalty determination is entirely within the discretion of the jury, without any preference for either of the two available punishments, not necessarily that the jury may choose the death penalty only if it believes the punishment is warranted beyond a reasonable doubt,” he wrote.
August 30, 2021 | Permalink
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Sunday, August 29, 2021
are here. The usual disclaimers apply. The list was only nine deep this week, presumably because of the decrease in postings and downloads over the summer.
| Rank |
Paper |
Downloads |
| 1. |
University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct
Date Posted: 17 Aug 2021 [5th last week]
|
71 |
| 2. |
Seton Hall Law School
Date Posted: 12 Aug 2021 [3rd last week]
|
43 |
| 3. |
Harvard University, Division of Continuing Education
Date Posted: 27 Jul 2021 [2nd last week]
|
42 |
| 4. |
Michigan State University - College of Law
Date Posted: 11 Aug 2021 [7th last week]
|
39 |
| 5. |
University of Otago - Faculty of Law
Date Posted: 30 Jun 2021 [4th last week]
|
37 |
| 6. |
Victoria University of Wellington - Faculty of Law
|
34 |
| 7. |
Law Office of Margaret Love and Collateral Consequences Resource Center
Date Posted: 23 Jun 2021 [8th last week]
|
25 |
| 8. |
Zeff Law Firm
Date Posted: 19 Aug 2021 [new to top ten]
|
19 |
| 9. |
Asia Pacific University of Technology and Innovation
Date Posted: 23 Jul 2021 [new to top ten]
|
August 29, 2021 | Permalink
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Saturday, August 28, 2021
are here. The usual disclaimers apply.
| Rank |
Paper |
Downloads |
| 1. |
University of Texas School of Law
|
256 |
| 2. |
Rutgers, The State University of New Jersey - Rutgers Law School
|
248 |
| 3. |
Texas A&M University School of Law
|
204 |
| 4. |
The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University
Date Posted: 28 Jul 2021 [new to top ten]
|
158 |
| 5. |
The Ohio State University Moritz College of Law
Date Posted: 25 Jun 2021 [4th last week]
|
73 |
| 6. |
Texas A&M University School of Law
Date Posted: 08 Jul 2021 [5th last week]
|
60 |
| 7. |
University of Ottawa - Department of Psychology, Angelini Pharma, University of Ottawa, Students, University of Ottawa, Students, University of Ottawa, Students, University of Louisville, Louis D. Brandeis School of Law, Students, University of Ottawa, Students and University of Louisville - Louis D. Brandeis School of Law
|
57 |
| 8. |
University of Nevada, Las Vegas, William S. Boyd School of Law
Date Posted: 20 Jul 2021 [6th last week]
|
53 |
| 9. |
Southern Methodist University - Dedman School of Law and Duke University School of Law
Date Posted: 10 Aug 2021 [new to top ten]
|
36 |
| 10. |
Victoria University of Wellington - Faculty of Law
Date Posted: 19 May 2020 [8th last week]
|
34 |
August 28, 2021 | Permalink
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Friday, August 27, 2021
From The Brennan Center, via NACDL's news-of-interest:
[T]here is zero evidence that suspicionless surveillance has made us safer. Consider the NSA’s program of “bulk collection” — the poster child for suspicionless surveillance — in which the agency obtained Americans’ phone records en masse. Two independent reviews found that this program yielded little-to-no counterterrorism benefit. Indeed, there is evidence that overcollection is counterproductive. Multiple government reviews of domestic terrorist incidents have found that agents missed signs of trouble because those signs were lost in the noise of irrelevant data.
A comprehensive overhaul of surveillance laws is in order. The goal should be reviving the requirement of individualized, fact-based suspicion for collection on Americans and others in the United States, while narrowing the permissible scope of collection on foreigners overseas. Achieving this goal will require restoring limitations that were stripped out of the law after 9/11, as well as enacting new ones to ensure that Americans’ sensitive information is protected from disclosure regardless of who holds the information or the technology used to capture it.
August 27, 2021 | Permalink
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The distribution of police activity throughout society is a key issue for distributive justice and police legitimacy. This article presents two studies on the distribution of police identification checks in Catalonia (Spain) using data provided by Mossos d’Esquadra (the Catalan Regional Police). The first study explores the demographic distribution of ID checks, in other words, which groups of people are more likely to be stopped and have their identification checked by police. The second study examines the geographical distribution, that is, in which places are there greater concentrations of ID checks. The results show that with regards to demographics, men, young people and foreign people are associated with higher levels of ID checks. In addition, the geographical distribution is not primarily driven by crime rates, thus, in general, it seems that the distribution of ID checks is not as strongly related to crime as may be expected.
August 27, 2021 | Permalink
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Thursday, August 26, 2021
Derek Demeri has posted The Model Penal Code & Sex Work Criminalization on SSRN. Here is the abstract:
There is no early colonial common law crime of prostitution, yet societal attitudes today would suggest the criminal suppression of sex work is as old as the United States. Contrary to these assumptions, modern state laws criminalizing prostitution are relatively new and little has been devoted to understanding these laws’ development despite a century-old debate on whether and how to criminalize sex work. The most influential legal authority, Section 251.2 of the Model Penal Code, is one such example. At least twenty jurisdictions have adopted some portion of Section 251.2 in their prostitution-related criminal statutes, but no scholarship has examined its creation. This Article addresses this dearth of knowledge by conducting archival analysis of the drafting process behind Section 251.2 and reviews the four stated rationalizations for criminalizing prostitution: suppressing venereal disease and organized crime, preventing the corruption of government and law enforcement, and maintaining stability of the home and family. After evaluating available social science research and studies, this Article concludes decriminalizing all aspects of sex work—including sex workers, their clients, and non-exploitative third parties— overwhelmingly better address the stated rationalizations than criminalizing prostitution.
August 26, 2021 | Permalink
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The use of automated facial recognition in law enforcement is still a novel practice and as a result the legislative framework for this technology is ill-defined. The judgement of The Queen (on application of Edward Bridges) v The Chief Constable of South Wales Police [2020] EWCA Civ 1058 is the first case in the world that examines pertinent legal questions pertaining to this new technology. Automatic facial recognition may be used in law enforcement, but to prevent massive human rights violations, operators should perform their duties within a well-defined legal framework where discretion is kept to the minimum, and strict data-retention policies are followed. Furthermore, human oversight should always be part of an automated facial recognition system to ensure accuracy, fairness, and compliance with the law.
August 26, 2021 | Permalink
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Robert Fairbanks has posted Masterpiece or Mess: The Mosaic Theory of the Fourth Amendment Post-Carpenter (Berkeley Journal of Criminal Law 2021) on SSRN. Here is the abstract:
In Carpenter v. United States, the Supreme Court potentially adopted what has been called the mosaic theory of the Fourth Amendment. The mosaic theory, which looks at the type and amount of information the government gathered in the aggregate, represents a significant departure from traditional Fourth Amendment doctrine. This potential adoption of the mosaic theory has left the lower courts in a difficult position where they must grapple with a variety of problems presented by the doctrine.
This Note aims to explore the post-Carpenter state of the law among the lower courts. It begins by examining lower court decisions that have adopted the mosaic theory. Next, it turns to lower court decisions that declined to apply the mosaic theory. Finally, it discusses broader takeaways and lessons that have emerged from the post-Carpenter cases.
August 26, 2021 | Permalink
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Wednesday, August 25, 2021
Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and Kimberley Kessler Ferzan say that risk in criminal recklessness ought to be constituted by the subjective belief of the person whose action is being evaluated: the gravity of the harm risked and its probability of resulting is what the person believed it to be, not what it actually was. This means that recklessness can be found in the absence of any “real” risk. This article critiques the authors’ argument for subjective risk in recklessness. They exaggerate the arbitrariness in identifying risk non-subjectively and do not sufficiently acknowledge risk as an inter-subjectively constituted practical concept. Fixing risk subjectively, as advocated by the authors, nonetheless may appear to be of use for inchoate criminal liability. The article considers and rejects this idea of occasionally subjectivising risk in recklessness.
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August 25, 2021 | Permalink
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In judging an offender’s culpability, mitigation, or excuse, there seems to be general agreement that it is appropriate for the criminal law to take into account such things as the offender’s youthfulness or her significantly low IQ. There is even support for taking account of their distorted perceptions and reasoning induced by traumatic experiences, as in battered spouse syndrome. On the other hand, there seems to be equally strong opposition to taking account of things such as racism or homophobia that played a role in bringing about the offense. In between these two clear points, however, exists a large collection of individual offender characteristics and circumstances for which there is lack of clarity as to whether the criminal law should take them into account. Should our assessment of an offender’s criminal liability be adjusted for their cultural background? Their religious beliefs? Their past life experiences? The pedophilic tendencies they have always had but usually suppressed?
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August 25, 2021 | Permalink
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Tuesday, August 24, 2021
For seventeen years the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as bearing indicia of reliability under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving statements to law enforcement officers and written affidavits of crime lab technicians. In these subsequent cases, for apparently pragmatic reasons, various pluralities of the Court appear to have redefined “testimonial” to mean, at least in part, “potentially unreliable,” thereby contradicting the goal of Crawford.
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August 24, 2021 | Permalink
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An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution. Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development. The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials. This work, using radon exposure litigation as a case study, explains how environmental harms in prisons threaten lives and violate the Constitution.
August 24, 2021 | Permalink
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This Article seeks to advance two conversations. First, a scholarly analysis of what ultimately justifies the United States operating a separate code of criminal law applicable to servicemembers at home and when deployed, whether “on duty” or off, for acts that may have nothing at all to do with military affairs, and in which a lay officer “in command” has discretionary authority to investigate, prosecute, and in some ways punish offenders – we might refer to this as jus in disciplina militaras. The second, a professional discussion that directly confronts the reality of increased Congressional and public skepticism about military justice procedures, directly acknowledges that Supreme Court precedent that has long defined and permitted this system’s departure from civilian norms and practices may be turning a corner, and that around the corner is a view of military justice that rejects the presumptive primary importance of that lay commanding officer. To spark both of those conversations, this Article must necessarily investigate the subject from a flank that has not been approached in any formally deliberate way to date.
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August 24, 2021 | Permalink
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Monday, August 23, 2021
In the summer of 2013, I was a newly tenured law professor. I had just lived through the hardest year of my life, waiting for my tenure vote and the rubber stamp from the university. That the 2012–2013 academic year was the hardest of my life really meant something, because for the twenty-five years before that, I had been living with a psychiatric disability, a severe anxiety disorder.
I had spent all of my adult life “passing,” pretending to be someone who is calm and confident, competent and clear-headed, when in my mind I was terrified for just about every waking moment.
Why did I hide my disability? Because I was convinced that passing for “normal” was the only way I could succeed in my career.
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August 23, 2021 | Permalink
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Delores Jones-Brown,
Akiv Dawson,
Kwan-Lamar Blount-Hill,
Kenethia McIntosh Fuller,
Paul Oder and
Henry Fradella (Howard University, Georgia Southern University, John Jay College of Criminal Justice and the CUNY Graduate Center, North Carolina Central University (NCCU), John Jay College of Criminal Justice and the CUNY Graduate Center and Arizona State University - School of Criminology and Criminal Justice) have posted
Am I My Brother's Keeper: Can Duty to Intervene Policies Save Lives and Reduce the Need for Special Prosecutors in Officer-Involved Homicide Cases? (
Volume 57, Issue No. 5, The Criminal Law Bulletin) on SSRN. Here is the abstract:
Graham v. Connor makes the standard for assessing the lawfulness of an officer’s use of force a determination of objective reasonableness as viewed from the perspective of other officers on the scene. Duty to intervene (DTI) policies impose an obligation on peer officers to prevent or terminate unreasonable force occurring in their presence. But research and admissions from police personnel provide evidence that policing suffers from an organizational culture that may thwart this stated duty. By examining the facts related to the deaths of Eric Garner in New York, Freddie Gray in Baltimore, and George Floyd in Minneapolis against existing DTI policies and the reasonableness requirement articulated in Graham v. Connor, we conclude that their deaths should have been prevented by officer intervention. In an empirical analysis of the standard operating procedures of the police departments for the thirty largest U.S. cities, we found that less than half had DTI provisions and that the content of the existing ones varied significantly. We surmise that this variation may have contributed to our finding that departments with DTI policies did not report fewer officer-involved deaths (OIDs) than departments without such policies. However, nearly half of the departments with DTI policies did report fewer multi-officer OIDs than single-officer OIDs. We also found that, compared to Departments without DTI policies, more OIDs in departments with DTI policies resulted in formal charges. We recommend mandating the adoption of a uniform DTI policy as a mechanism for enhanced police accountability in officer-involved killings.
August 23, 2021 | Permalink
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In response to growing concerns over school violence, crime, and safety, schools continue to implement school crime prevention and reduction policies and programs. Aside from the increased demands on school budgets imposed by new and enhanced school safety programs, two additional factors complicate matters further. First, just as schools vary in terms of their violence and crime prevention programmatic needs, schools (and districts) also vary in terms of their financial needs and health. Second, schools similarly vary in the magnitude of financial tradeoffs incident to school administrators’ reconciling competing claims for school crime prevention programs and other demands on a non-inexhaustible supply of school funds. Exploiting the nation’s leading data set on public school crime and safety, the U.S. Department of Education’s 2017-18 School Survey on Crime and Safety (“SSOCS”), supplemented by district-level current per pupil spending data, we explore variation in school administrators’ views about the nature of the compromise between school safety and other budgetary claims.
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August 23, 2021 | Permalink
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