CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	'Ruined' Maybell Romero Tulane University Law School Date Posted: 21 Mar 2022 [2nd last week]	677
2.	The Fourth Amendment and General Law Danielle D'Onfro and Daniel Epps Washington University in St. Louis - School of Law and Washington University in St. Louis - School of Law Date Posted: 21 Mar 2022 [3rd last week]	453
3.	Police Brutality as Torture Nadia Banteka University of the Pacific - McGeorge School of Law Date Posted: 08 Mar 2022 [4th last week]	420
4.	Dealing with Dead Crimes Joel S. Johnson Independent Date Posted: 25 Feb 2022 [6th last week]	243
5.	The Trouble with Time Served Kimberly Kessler Ferzan University of Pennsylvania Carey Law School Date Posted: 21 Mar 2022 [8th last week]	183
6.	Courts Without Court Andrew Guthrie Ferguson American University Washington College of Law Date Posted: 09 Mar 2022 [9th last week]	165
7.	The Fourth Amendment Without Police Shawn Fields Campbell University - Norman Adrian Wiggins School of Law Date Posted: 07 Mar 2022 [10th last week]	139
8.	Charging Time Pamela Metzger and Janet C. Hoeffel Southern Methodist University - Dedman School of Law and Tulane University - Law School Date Posted: 15 Mar 2022 [new to top ten]	127
9.	The Unconstitutional Police Brandon Hasbrouck Washington and Lee University - School of Law Date Posted: 01 Apr 2022 [new to top ten]	127
10.	The Just Prosecutor Brandon Hasbrouck Washington and Lee University - School of Law Date Posted: 01 Apr 2022 [new to top ten]	126

Zaia on Entrapment in the Virtual Space

Mathew Zaia has posted Scraping in Cyberspace: Police Entrapment in the Virtual World ((2022) 26:3 Canadian Criminal Law Review (Forthcoming)) on SSRN. Here is the abstract:

The Supreme Court of Canada will soon consider entrapment in the virtual space in four companion cases: R v Ramelson, R v Haniffa, R v Dare, and R v Jaffer. This paper suggests that the Court should strike while the proverbial iron is hot and provide a detailed review of how to define, assess, and engage with the virtual space—and different types of virtual spaces—for the purpose of entrapment. Part II of the paper provides a brief historical backdrop of the entrapment doctrine and summarizes recent Supreme Court jurisprudence dealing with virtual entrapment. Part III then outlines the factors that the Court ought to consider in determining how to deal with bona fide inquiries in the virtual space. Finally, the paper proposes a framework of analysis for the Court to consider as it looks to provide direction on entrapment in the virtual space.

Carbado & Feingold on Rewriting Whren

Devon W. Carbado and Jonathan Feingold (University of California, Los Angeles (UCLA) - School of Law and Boston University School of Law) have posted Rewriting Whren v. United States (UCLA Law Review, Vol. 68, 2022) on SSRN. Here is the abstract:

 

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that the Court’s hands were tied.

This Article argues otherwise by offering an alternative Supreme Court opinion that could have decided the case.

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Robinson on Ecocide

Darryl Robinson (Queen's University - Faculty of Law) has posted Ecocide - Puzzles and Possibilities (Journal of International Criminal Justice) on SSRN. Here is the abstract:

 

Popular interest in a new crime of ‘ecocide’ has recently surged. The proposed crime seeks to more strongly repudiate the most egregious environmental wrongdoing, complementing other efforts to curb ongoing environmental destruction. In June 2021, an international panel proposed a definition of ecocide. Initial academic commentaries, many of them critical, reflect entirely understandable first reactions. However, combining international criminal law (ICL) and environmental law raises fascinating new issues that are not initially obvious. These challenges may require a reappraisal of initial reflexes of ICL jurists.

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Funk on Provocative Acts, Self-Defense, and the Rittenhouse Case

T. Markus Funk PhD (University of Oxford, University of Colorado School of Law) has posted The Rittenhouse Case - Misunderstanding when Provocative Acts Bar Self-Defense on SSRN. Here is the abstract:

 

Former federal prosecutor T. Markus Funk says the trial of Kyle Rittenhouse pushed the self-defense and provocation legal standards into the spotlight like no other case in recent history. He argues that critical legal and strategic errors (or, perhaps, intentional omissions) by the prosecution team, almost completely unnoticed by the media and their legal experts, caused the case to derail as soon as it began.

Funk and Volokh on Comparative Self-Defense Law

T. Markus Funk PhD and Eugene Volokh (University of Oxford, University of Colorado School of Law and University of California, Los Angeles (UCLA) - School of Law) have posted U.S. Self-Defense Law - 'Harsh' By International Standards? (Bloomberg Law Insights 2022) on SSRN. Here is the abstract:

 

The Kyle Rittenhouse murder trial uniquely spotlighted U.S. self-defense law, say former prosecutor T. Markus Funk, a partner at Perkins Coie, and UCLA School of Law professor Eugene Volokh. Using laws in England and Germany as examples, they explain that U.S. self-defense law is, by international comparison, far more restrictive than many in the legal and media communities recognize.

Offit on Batson and the Anthropology of Law

Anna Offit (Southern Methodist University - Dedman School of Law) has posted Antidiscrimination Law Through a Sociolegal Lens (73 Alabama Law Review 4 (2022)) on SSRN. Here is the abstract:

 

This Symposium invites reflection on whether the Anthropology of Law has “any space left for the content of rules” at a time when the concerns of legal anthropologists have largely shifted to processes, materials, and practices that are “adjacent to law.”[1] Taking the jury system as an illustrative case, this Essay advocates for the relevance and value of the anthropological study of rules, their content, and their effects. Looking in particular at antidiscrimination rules derived from Batson v. Kentucky,[2] decided in 1986, it argues that a sociolegal, ethnographic approach to how lawyers perpetuate discrimination in jury selection offers insight into everyday legal practice that is critical to enacting impactful jury reform—that is, to making better rules.

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Miller on Brady and Judges

Ben Miller has posted Planning Brady’s Comeback: Public Defenders Are Needed as Judges to Lead the Restoration of Brady’s Lost Promise (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

Since 2020, nearly 60% of all people who have been exonerated had cases infected with Brady violations, costing these people to lose more than 3,600 years combined to wrongful incarceration. Nevertheless, the United States Supreme Court has transformed from once recognizing Brady violations undermine the “very integrity of the judicial system” to disregarding their impact as not that harmful of a constitutional violation. The promise once surrounding Brady has largely been replaced by hollow prosecutorial proclamations of a commitment to their obligations followed by courts forgiving them when they suppress favorable information. Such a dynamic occurred in Turner v. United States, where Justice Breyer quoted the government’s claim of a “generous” disclosure policy in the opinion. He and the majority then upheld the convictions even though the prosecution hid from the defense a substantial amount of information that could have changed the “whole tenor” of trial.

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Sow on Protect and Serve

Marissa Jackson Sow (Open Society Foundations (OSF)) has posted Protect and Serve (California Law Review, Vol. 110, 2022) on SSRN. Here is the abstract:

 

There exists a substantial body of literature on racism and brutality in policing, police reform and abolition, the militarization of the police, and the relationship of the police to the State and its citizenry. Many theories abound with respect to the relationship between the police and Black people in the United States, and most of these theories rest upon the basic assumption—undergirded by constitutional, civil rights, and human rights law—that Black people in the United States are entitled to due process and equal protection when they are in contact with the police or other law enforcement officers.

This Article uses critical contract theory and the theory of Whiteness as Contract to challenge that basic assumption and instead advance the claim that the mandate that police “protect and serve” does not apply to Black people, notwithstanding the provisions of constitutional and statutory law, because Black people are the objects of racial contracting rather than participants therein. The police are charged with protecting the racial contract and serving the contract’s signatories; accordingly, they enforce the contract’s terms, requiring them to specifically target Black people for surveillance, harassment, deprivation, and even death, lest the contract be subject to breach or other interference.

Sinha and Umamaheswar on Wrongful Imprisonment and Coerced Moral Degradation

G. Alex Sinha and Janani Umamaheswar (Quinnipiac University School of Law and George Mason University) have posted Wrongful Imprisonment and Coerced Moral Degradation (Cal. L. Rev. Online (2022 Forthcoming)) on SSRN. Here is the abstract:

 

Despite the ever-growing number of exonerations in the U.S.—and the corresponding surge in scholarly interest in wrongful convictions in recent years—research on the carceral experiences of wrongfully-convicted persons remains strikingly limited. In this article, we draw on 15 in-depth interviews with exonerated men to explore the moral dimensions of the experience of wrongful imprisonment. We argue that imprisonment entails what we refer to as “coerced moral degradation,” whereby innocent men’s self-preservation efforts in prison require them to feign being—and at times actually become—morally worse people. We argue that these findings speak to the fundamental question of what the law is for, and, further, that the coerced moral degradation that the men experienced in prison provides a compelling basis for conservative and progressive scholars to find some common ground on the moral purpose of the law.

Washington on Notice of Access to Data Through Third-Party Providers of Digital Services

Michael Washington (The Cordell Institute for Policy in Medicine & Law at Washington University in St. Louis) has posted The Constitutionality of Notice in Search, Seizure and Surveillance on SSRN. Here is the abstract:

 

Today, individuals commonly store large and extremely sensitive data about themselves with third-party providers of digital services. It is equally common for law enforcement officers to request or compel access to those data from service providers as standard procedure, often accompanied by “gag orders” that prohibit providers from acknowledging whether a request, search, or seizure ever occurred. If the government searches or seizes a person’s data stored in the cloud, does the owner have a constitutional right to notice? If so, who must provide the notice and when? This partial draft addresses the constitutionality of notice in search, seizure and surveillance.

Sur et al. on Scam Susceptibility

Aparajita Sur, Marguerite DeLiema and Ethan Brown (University of Minnesota - Minneapolis, The University of Minnesota and University of Minnesota - Minneapolis) have posted Contextual and Social Predictors of Scam Susceptibility and Fraud Victimization on SSRN. Here is the abstract:

 

Financial fraud targeting older adults is on the rise, with annual losses totaling in the billions of dollars. Prior cross-sectional and qualitative studies have reported that negative life events and social factors, such as poor psychological well-being and loneliness, are significant correlates of fraud, yet there is little research using longitudinal data to show that these social factors and life events precede (versus follow) victimization experiences, and no studies that examine the impact of modifying social variables on the risk of fraud and reducing scam susceptibility. In this study, we use repeated measures from the Rush Memory and Aging Project (MAP) decision making substudy to assess how negative life events and trajectories in social support, well-being, and loneliness affect susceptibility to scams and fraud victimization over the course of the study. Experiencing negative life events was not associated with the risk of self-reported fraud victimization, although negative life events were statistically significantly associated with greater scam susceptibility in unadjusted models. Using a causal inference analysis that simulates the impact of a social support intervention on the risk of fraud over time revealed that higher consistent social support increases the average probability of reporting fraud victimization over the study, contrary to study hypotheses. Although the magnitude of effects are small, consistent interventions that maximize psychological well-being and minimize loneliness significantly reduce average scam susceptibility. Effects are stronger for older adults who are divorced, widowed, or never married relative to those who are married or partnered.

Pileri on Street Vending Violations

Joseph Pileri has posted Who Gets to Make a Living? Street Vending in America (Georgetown Immigration Law Review, Vol. 36, 2022) on SSRN. Here is the abstract:

Street vending has long provided those at the margins of American society with the opportunity for economic advancement. A key segment of the informal economy, street vending has low barriers of entry and attracts entrepreneurs who lack the resources, ability, or desire to start brick-and-mortar businesses or work for someone else. Street vending also contributes to the vitality and safety of urban America.

Despite the pivotal role that street vending plays, cities around the country criminalize vending by treating the violation of street vending regulations as a criminal offense. Recent high-profile vendor arrests in New York City and Washington, DC touched off protests and advocacy to decriminalize street vending. By attaching criminal violations to micro-enterprises like hot dog carts or fruit stands, localities place higher regulatory burdens on the smallest businesses in our communities.

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De Gregorio & Stremlau on Platform Governance

Giovanni De Gregorio and Nicole Stremlau (Centre for Socio-Legal Studies, University of Oxford and University of Oxford) have posted Platform Governance at the Periphery: Moderation, Shutdowns and Intervention (in Judit Bayer and others (eds), Perspectives on Platform Regulation. Concepts and Models of Social Media Governance Across the Globe (Nomos 2021)) on SSRN. Here is the abstract:

 

After illustrating how the spread of dangerous content has led to troubling consequences beyond digital boundaries, this chapter describes how online hate speech has become criminalised in the global south. It analyses Internet shutdowns to understand its socio-legal consequences, and explores the applicability of public international law and the humanitarian doctrine to information interventions.

Maurer on Martial Misconduct

Daniel D. Maurer (Dept of Law, United States Military Academy at West Point) has posted Martial Misconduct and Weak Defenses: a History Repeating Itself (Except When it Doesn't) (54 University of Illinois Chicago Law Review 867 (2021)) on SSRN. Here is the abstract:

 

This article explains how the debate over military justice reform, ongoing in Congress, within the Department of Defense, and in public conversation, ignores to its detriment several important factors – one involving subject matter jurisdiction, the other involving a set of normative claims – making this debate historically deficient. First, it ignores the key and historically accurate link between the outer limits of commanders’ criminal jurisdiction and the military harms they need to deter. Second, defenders of the status quo unaccountably repeat a number of failed or weak arguments in justifying the reach of these commanders over misconduct that has neither historical nor empirical claims to legitimacy.

Military Justice is the body of criminal law and procedure that regulates the conduct of millions of Americans based solely on their employment status. It has a history that predates the Constitution, but a strong pedigree is not an immunity from criticism. In fact, public interest and legislative skepticism about military justice’s more idiosyncratic features has not been this high since the ancient Articles of War (for the Army) and the Articles for the Government of the Navy were finally combined, reformed, and rationalized in the Uniform Code of Military Justice (1950).

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Lens on Counting and Criminalizing Stillbirths

Jill Wieber Lens (University of Arkansas - School of Law) has posted Counting Stillbirths (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Stillbirths—pregnancy losses after 20 weeks of pregnancy but before birth—are interfering with the right to have and parent a child, a centerpiece of the reproductive justice movement. And this interference is disproportionately affecting marginalized persons, as Black women and poor women face double the risk of stillbirth compared to white women and those with higher socioeconomic status, respectively.

We count what matters. Currently, we count stillbirths in the United states via state-issued fetal death certificates (FDCs). Studies, however, demonstrate that FDCs are underreporting stillbirths, especially early stillbirths, which Black women face triple the risk of. Studies also show that FDCs commonly lack data and contain inaccurate data.

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Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

• Reed v. Goertz : Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).

Solove & Schwartz on Privacy Law

Daniel J. Solove and Paul M. Schwartz (George Washington University Law School and University of California, Berkeley - School of Law) have posted An Overview of Privacy Law in 2022 (Chapter 1 of PRIVACY LAW FUNDAMENTALS (6th Edition, IAPP 2022))

 

Chapter 1 of PRIVACY LAW FUNDAMENTALS (6th edition, IAPP 2022)provides an overview of information privacy law circa 2022. The chapter summarizes the common themes in privacy laws and discusses the various types of laws (federal, constitutional, state, international). It contains a list and brief summary of the most significant U.S. federal privacy laws. The heart of the chapter is an historical timeline of major developments in the law of privacy and data security, including key cases, enactments of laws, major regulatory developments, influential publications, and other significant events. The chapter also contains a curated list of important treatises and scholarly works.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Police Brutality as Torture Nadia Banteka University of the Pacific - McGeorge School of Law Date Posted: 08 Mar 2022	419
2.	How To Fix Section 230 Danielle Keats Citron University of Virginia School of Law Date Posted: 11 Mar 2022	336
3.	The Negative Right to Shelter Ben A. McJunkin Arizona State University (ASU) - Sandra Day O'Connor College of Law Date Posted: 19 Feb 2022	308
4.	Dealing with Dead Crimes Joel S. Johnson Independent Date Posted: 25 Feb 2022	243
5.	Prosecutorial Nonenforcement and Residual Criminalization Justin Murray New York Law School Date Posted: 25 Feb 2022	242
6.	Criminal Justice Expertise Benjamin Levin University of Colorado Law School Date Posted: 24 Feb 2022	204
7.	What Makes a Sex Crime? A Fair Label for Image-based Sexual Abuse Marthe Goudsmit University of Oxford Date Posted: 05 Oct 2021 [8th last week]	173
8.	The Trouble with Time Served Kimberly Kessler Ferzan University of Pennsylvania Carey Law School Date Posted: 21 Mar 2022 [7th last week]	173
9.	Does Mens Rea Matter? Matthew Mizel, Michael Serota, Jonathan Cantor and Joshua Russell-Fritch Arnold Ventures, Arizona State University, Sandra Day O'Connor College of Law, RAND Corporation and Independent Date Posted: 09 Mar 2022	158
10.	The Law Enforcement Lobby Zoe Robinson and Stephen Rushin Australian National University, School of Politics and International Relations and Loyola University Chicago School of Law Date Posted: 21 Mar 2022 [new to top ten]	105

Next week's criminal law/procedure arguments

Issue summary is from ScotusBlog, which also links to papers:

Monday

• Nance v. Ward: (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

Tuesday

• Shoop v. Twyford: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.

Wednesday

• Oklahoma v. Castro-Huerta: Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country.