Tuesday, May 31, 2022
Friedman et al. on Policing Police Tech
Barry Friedman, Farhang Heydari, Max Isaacs and Katie Kinsey (New York University School of Law, Policing Project, NYU School of Law, New York University School of Law and NYU Law) have posted Policing Police Tech: A Soft Law Solution (Berkeley Technology Law Journal, Vol. 37, 2022) on SSRN. Here is the abstract:
Policing agencies are undergoing a rapid technological revolution. New products—with almost unfathomable capacities to collect, store, monitor, and transmit data about us—constantly are coming to market. In the hands of policing agencies, some of these products may promise real benefits to society. But too often these public safety benefits are unproven. And many of these products present real harms, including risks to privacy, freedom of speech, racial justice, and much more. Part of “public safety” is being safe from these harms as well.
Despite these risks, new policing tech products continue to be adopted and deployed without sufficient (or any) regulatory guardrails or democratic oversight. Legislative bodies are reluctant to adopt traditional “hard law” regulation. And because there is no regulation, what we are left with is a “race to the bottom” in which policing technology vendors develop increasingly intrusive products with minimal or no safeguards.
Despite these risks, new policing tech products continue to be adopted and deployed without sufficient (or any) regulatory guardrails or democratic oversight. Legislative bodies are reluctant to adopt traditional “hard law” regulation. And because there is no regulation, what we are left with is a “race to the bottom” in which policing technology vendors develop increasingly intrusive products with minimal or no safeguards.
May 31, 2022 | Permalink | Comments (0)
Heydari on The Private Role in Public Safety
Farhang Heydari (Policing Project, NYU School of Law) has posted The Private Role in Public Safety (George Washington Law Review, Vol. 90, No. 3, 2022) on SSRN. Here is the abstract:
Amid a national debate over the scope of the criminal system and calls to defund police, a growing number of jurisdictions are turning to private actors to mitigate the system’s harms. Communities across the country are purchasing body cameras, contracting for implicit bias trainings, and turning to community-based alternatives to police responses.
There is irony in these calls essentially to privatize aspects of public safety. Many proponents of these reforms sharply criticize privatization in related contexts, from prisons to policing. This contrast between demands to privatize in some instances, and to curtail privatization in others, underscores the twin theses of this Article. First, private influences on the criminal system are far more pervasive than the literature recognizes. By canvassing the roles of non-state actors, this Article demonstrates that private influence is inevitable. Second, private influences are neither intrinsically harmful nor beneficial. Although privatization raises serious governance concerns, public aspects of the system suffer many of the same problems, including distorted financial incentives, lack of transparency, and limited accountability. In fact, reliance on private rather than public actors sometimes mitigates these concerns.
There is irony in these calls essentially to privatize aspects of public safety. Many proponents of these reforms sharply criticize privatization in related contexts, from prisons to policing. This contrast between demands to privatize in some instances, and to curtail privatization in others, underscores the twin theses of this Article. First, private influences on the criminal system are far more pervasive than the literature recognizes. By canvassing the roles of non-state actors, this Article demonstrates that private influence is inevitable. Second, private influences are neither intrinsically harmful nor beneficial. Although privatization raises serious governance concerns, public aspects of the system suffer many of the same problems, including distorted financial incentives, lack of transparency, and limited accountability. In fact, reliance on private rather than public actors sometimes mitigates these concerns.
May 31, 2022 | Permalink | Comments (0)
Monday, May 30, 2022
Albert on Sex Trafficking
Kendra Albert has posted Five Reflections from Four Years of FOSTA/SESTA (Cardozo Arts & Entertainment Law Journal, Forthcoming) on SSRN. Here is the abstract:
Signed into law in 2018, the Fight Online Sex Trafficking Act (FOSTA/SESTA) represented the first major amendment to § 230 since its passage in 1996. Yet, because of the subject material of the bill, it has received little discussion by mainstream § 230 reform advocates. Additionally, technology policy advocates that have commented often fail to engage with the substantial background debates that have occurred about either sex trafficking or sex work, coming to FOSTA/SESTA as if it should be understood primarily as an intervention around § 230.
FOSTA/SESTA is better understood as the logical extension of a set of campaigns to make it more difficult for folks engaging in sex work to use mainstream public accommodations, often pushed in the name of fighting sex trafficking. Putting the law in this context, as I have learned to do through my conversations with sex workers, suggests an entirely different set of takeaways, starting with naming the harms done to those in the sex trades in the name of “ending sexual exploitation,” but not ending there. In this essay, I present five reflections from my work on FOSTA/SESTA, focusing on what technology policy advocates should learn from its harms, fall out, and the amazing mobilization that has occurred within sex worker communities after it was signed into law.
FOSTA/SESTA is better understood as the logical extension of a set of campaigns to make it more difficult for folks engaging in sex work to use mainstream public accommodations, often pushed in the name of fighting sex trafficking. Putting the law in this context, as I have learned to do through my conversations with sex workers, suggests an entirely different set of takeaways, starting with naming the harms done to those in the sex trades in the name of “ending sexual exploitation,” but not ending there. In this essay, I present five reflections from my work on FOSTA/SESTA, focusing on what technology policy advocates should learn from its harms, fall out, and the amazing mobilization that has occurred within sex worker communities after it was signed into law.
May 30, 2022 | Permalink | Comments (0)
Meyers on Mass Criminalization and Racial Disparities in Conviction Rates
Erin E. Meyers (Vanderbilt University, Law School, Law and Economics, Graduates) has posted Mass Criminalization and Racial Disparities in Conviction Rates (Hastings Law Journal 2022) on SSRN. Here is the abstract:
A staggering number of Americans experience criminal justice contact each year, ranging from arrest to long-term incarceration. One 2014 Wall Street Journal report estimated that approximately one in three Americans are represented in the FBI’s master criminal database. Many scholars and commentators have questioned the desirability of mass criminalization and the resulting large-scale arrests.
I add new empirical context to this ongoing discussion by examining conviction rates among a nationally representative sample of young men. I find that, conditional on having been arrested, Black men are 29% less likely than their similarly situated White counterparts to experience conviction. This result may come as a surprise, given that existing research shows that Black men experience worse outcomes at the arrest and sentencing stages of criminal justice processing.
I add new empirical context to this ongoing discussion by examining conviction rates among a nationally representative sample of young men. I find that, conditional on having been arrested, Black men are 29% less likely than their similarly situated White counterparts to experience conviction. This result may come as a surprise, given that existing research shows that Black men experience worse outcomes at the arrest and sentencing stages of criminal justice processing.
May 30, 2022 | Permalink | Comments (0)
Sunday, May 29, 2022
Top-Ten Recent SSRN Downloads in Criminal Law eJournal
are here. The usual disclaimers apply.
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
Date Posted: 05 Oct 2021 [2nd last week] |
236 |
| 2. |
Date Posted: 10 May 2022 [3rd last week] |
184 |
| 3. |
Date Posted: 11 Apr 2022 [4th last week] |
141 |
| 4. |
Date Posted: 17 Apr 2022 [5th last week] |
125 |
| 5. |
Date Posted: 14 May 2022 [7th last week] |
125 |
| 6. |
Date Posted: 17 Apr 2022 [9th last week] |
124 |
| 7. |
Date Posted: 28 Mar 2022 [6th last week] |
121 |
| 8. |
Date Posted: 06 Apr 2022 [8th last week] |
118 |
| 9. |
Date Posted: 18 May 2022 [new to top ten] |
113 |
| 10. |
Date Posted: 05 Oct 2021 |
94 |
May 29, 2022 | Permalink | Comments (0)
Saturday, May 28, 2022
Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal
are here. The usual disclaimers apply.
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
Date Posted: 01 Apr 2022 [2nd last week] |
766 |
| 2. |
Date Posted: 01 Apr 2022 [3rd last week] |
744 |
| 3. |
Date Posted: 01 Apr 2022 [4th last week] |
716 |
| 4. |
Date Posted: 01 Apr 2022 [5th last week] |
576 |
| 5. |
Date Posted: 09 Feb 2022 [8th last week] |
221 |
| 6. |
Date Posted: 10 May 2022 [9th last week] |
184 |
| 7. |
Date Posted: 30 Apr 2022 [new to top ten] |
125 |
| 8. |
Date Posted: 18 May 2022 [new to top ten] |
113 |
| 9. |
Date Posted: 09 Apr 2022 [new to top ten] |
113 |
| 10. |
Date Posted: 30 Mar 2022 [new to top ten] |
97 |
May 28, 2022 | Permalink | Comments (0)
Friday, May 27, 2022
Haley on Compassionate Release and COVID
Mariah Haley (Columbia Law Review) has posted Unequal Treatment: (In)compassionate Release from Federal Prison in the Context of the COVID-19 Pandemic and Vaccine (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:
COVID-19, the disease caused by SARS-CoV-2, has wreaked havoc globally since it was first discovered in December 2019. In the United States, many federal prisons experienced outbreaks of the virus, leading to both severe illness and death. Almost as soon as the pandemic began in the United States, people in prison—especially those with preexisting conditions—turned to the statutory mechanism known as “compassionate release” to request early release from prison based on the “extraordinary and compelling” nature of the pandemic.
May 27, 2022 | Permalink | Comments (0)
Sekhon on Critical Legal Studies and the Police
Nirej Sekhon (Georgia State University College of Law) has posted Critical Legal Studies and the Police (Cardozo Law Review, Vol. 43, No. 3, 2022) on SSRN. Here is the abstract:
Constitutional police regulation is a complex tangle of substantive rights, remedies, and procedural rules. Together, they appear to scaffold a cohesive system of police restraint. Legal scholars tend to focus criticism on specific rules, impelled by faith that the system can be made to serve its core purpose: protecting civilians against police overreach and abuse. Drawing on critical legal studies, this Article contends that constitutional police regulation is incapable of realizing its putative purpose. Constitutional police regulation frames policing as a series of isolated, individual police-civilian encounters. This is compounded by the unpredictable interpretive interplay between substantive, remedial, and procedural rules. That interplay generates systemic indeterminacy.
May 27, 2022 | Permalink | Comments (0)
Thursday, May 26, 2022
Morley on Sex Work
S. Priya Morley (Promise Institute for Human Rights at UCLA School of Law) has posted The Many Lives of a 'Win': Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (52 Colum. Hum. Rts. L. Rev. 1240 (2021)) on SSRN. Here is the abstract:
The Many Lives of a ‘Win’: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society considers the recent strategic litigation challenging Canada’s criminal laws surrounding sex work as unconstitutional. Although the Supreme Court of Canada struck down the laws, which was hailed as a ‘win’ for sex workers, the Conservative Party subsequently implemented the ‘Nordic model’ of asymmetrical criminalization. The Article traces through this recent history, and argues that although the litigation did not achieve the substantive ‘win’ that its proponents had hoped for, it has made a significant contribution to access to justice in Canada.
May 26, 2022 | Permalink | Comments (0)
Levin on Criminal Law Exceptionalism
Benjamin Levin (University of Colorado Law School) has posted Criminal Law Exceptionalism (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of a space of moral clarity, the “criminal justice system” is frequently identified by critical scholars and activists as a space of racial subordination, widespread inequality, and rampant institutional violence.
In this Article, I applaud that critical turn. But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance—issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.
In this Article, I applaud that critical turn. But, I argue that, when taken seriously, contemporary critiques of the criminal system raise foundational questions about power and governance—issues that should transcend the civil/criminal divide and, in some cases, even the distinction between state and private action.
May 26, 2022 | Permalink | Comments (0)
Wednesday, May 25, 2022
Solum & Crema on The Original Meaning of Fifth Amendment "Due Process of Law"
Lawrence B. Solum and Max Crema (University of Virginia School of Law and affiliation not provided to SSRN) have posted The Original Meaning of “Due Process of Law” in the Fifth Amendment (108 Va. L. Rev. 447 (2022)) on SSRN. Here is the abstract:
The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.
May 25, 2022 | Permalink | Comments (0)
Levine et al. on State Constitutional Rights and Unconstitutional Conditions
Kay Levine, Jonathan Remy Nash and Robert A. Schapiro (Emory University School of Law, Emory University School of Law and University of San Diego School of Law) have posted Are State Constitutional Rights for Sale? Protecting State Constitutional Rights from Unconstitutional Conditions (UC Davis Law Review, 2022) on SSRN. Here is the abstract:
The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts.
As attention turns to distinctive state constitutional rights, in the context of COVID-19 litigation and more generally, state courts should develop their own state doctrines of unconstitutional conditions, rather than simply reverting to federal unconstitutional conditions analysis.
As attention turns to distinctive state constitutional rights, in the context of COVID-19 litigation and more generally, state courts should develop their own state doctrines of unconstitutional conditions, rather than simply reverting to federal unconstitutional conditions analysis.
May 25, 2022 | Permalink | Comments (0)
Tuesday, May 24, 2022
Moy on Facial Recognition Technology and Misidentifications
Laura Moy (Georgetown University Law Center) has posted Facing Injustice: How Face Recognition Technology May Increase the Incidence of Misidentifications and Wrongful Convictions (William & Mary Bill of Rights Journal, Vol. 30, No. 2, 2021) on SSRN. Here is the abstract:
Does law enforcement use of face recognition technology paired with eyewitness identifications increase the incidence of wrongful convictions in U.S. criminal law? This Article explores this critical question and posits that the answer may be yes. Facial recognition is frequently used by law enforcement agencies to help generate investigative leads that are then presented to eyewitnesses for positive identification. But erroneous eyewitness accounts are the number one cause of wrongful convictions, and the use of face recognition to generate investigative leads may create the conditions for erroneous eyewitness identifications to take place. This is because face recognition technology is designed to query a large database of faces to find lookalikes, and sometimes an innocent lookalike will resemble a suspect so closely that police may mistakenly select that person as an investigative lead, and an eyewitness may be unable to tell the difference between the lookalike and the actual suspect. This Article explores this possible problem and offers policy recommendations to help address it.
May 24, 2022 | Permalink | Comments (0)
Starr on Race-Norming and Statistical Discrimination
Sonja B. Starr (University of Chicago) has posted Race-Norming and Statistical Discrimination: Beyond the NFL on SSRN. Here is the abstract:
This Article uses the recent NFL “race-norming” scandal—in which Black players with concussion claims were scored differently on cognitive impairment tests, based on the assumption that they were less intelligent at baseline—as an entry point to a broad-ranging analysis of inconsistencies in the law’s treatment of statistical discrimination. The Supreme Court has emphatically and repeatedly rejected efforts to justify otherwise-illegal discrimination against individuals by resort to statistical generalizations about groups. This doctrine makes practices like the NFL’s not just repugnant, but illegal—yet such practices are pervasive and persistent, in high-stakes settings far beyond the NFL. Similar race-norming in diagnostic algorithms is ubiquitous in medicine, for example, but has avoided legal scrutiny. Moreover, the justice system itself has embraced numerous similar practices, including demographic norming of intellectual-capacity assessments for defendants facing the death penalty, explicit class-based discrimination in criminal justice risk assessments, and the use of race- and sex-specific actuarial data to calculate tort damages. This Article examines these practices, the law governing them, and the reasons for these disconnects between law and practice.
May 24, 2022 | Permalink | Comments (0)
Monday, May 23, 2022
McPherson on International Sex Offender Registration Systems
Lori McPherson (Government of the United States of America - United States Marshals Service (USMS)) has posted Leveraging Information to Prevent Offending Abroad: International Megan's Law and Sex Offender Registration Systems Around the World (Gonzaga Law Review, Vol. 57, No. 2, 2021/22) on SSRN. Here is the abstract:
This article discusses in broad terms the longstanding and significant problem of convicted sex offenders traveling internationally to abuse children, and the efforts underway in the United States to prevent such offending behavior. It focuses on how the United States shares information about known offenders when they travel internationally and provides an overview of existing sex offender registration systems around the world. These discussions demonstrate that many nations are in a position to proactively exchange information about known sex offenders with one another to better protect their own countries.
The Article proceeds in seven parts. A general discussion about the problem of the sexual exploitation of children in travel and tourism (SECTT) is found in Part I.
The Article proceeds in seven parts. A general discussion about the problem of the sexual exploitation of children in travel and tourism (SECTT) is found in Part I.
May 23, 2022 | Permalink | Comments (0)
Opinion on habeas review when post-conviction counsel ineffective
Justice Thomas delivered the opinion of the Court in Shinn v. Martinez Ramirez. Justice Sotomayor dissented, joined by Justices Breyer and Kagan.
May 23, 2022 | Permalink | Comments (0)
Monea on Contempt
Nino Monea has posted Is the Contempt Power Obsolete? (127 Dickinson Law Review __ (2022)) on SSRN. Here is the abstract:
Contempt power has been with us for as long as we’ve had courts in this country. Through summary contempt proceedings, judges may imprison any person they deem insufficiently respectful to the authority of the court—with significantly less due process than a person would be entitled to under any other criminal offense. In theory, this is necessary to maintain order in the court. But in practice, summary contempt power is serially and seriously abused. Judges use incarceration to deal with piddling offenses or seemingly for no real reason at all. This Article argues that the concept of allowing judges nearly unbridled discretion to jail people for rudeness is outdated and should be reformed.
May 23, 2022 | Permalink | Comments (0)
Sunday, May 22, 2022
Top-Ten Recent SSRN Downloads in Criminal Law eJournal
are here. The usual disclaimers apply.
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
Date Posted: 21 Mar 2022 [2nd last week] |
257 |
| 2. |
Date Posted: 05 Oct 2021 [3rd last week] |
213 |
| 3. |
Date Posted: 10 May 2022 [new to top ten] |
166 |
| 4. |
Date Posted: 11 Apr 2022 [new to top ten] |
135 |
| 5. |
Date Posted: 17 Apr 2022 [8th last week] |
122 |
| 6. |
Date Posted: 28 Mar 2022 [7th last week] |
116 |
| 7. |
Date Posted: 14 May 2022 [new to top ten] |
116 |
| 8. |
Date Posted: 06 Apr 2022 [6th last week] |
113 |
| 9. |
Date Posted: 17 Apr 2022 [new to top ten] |
111 |
| 10. |
Date Posted: 05 Oct 2021 |
91 |
May 22, 2022 | Permalink | Comments (0)
Saturday, May 21, 2022
Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal
are here. The usual disclaimers apply.
| Rank | Paper | Downloads |
|---|---|---|
| 1. |
Date Posted: 21 Mar 2022 |
705 |
| 2. |
Date Posted: 01 Apr 2022 |
630 |
| 3. |
Date Posted: 01 Apr 2022 |
609 |
| 4. |
Date Posted: 01 Apr 2022 |
594 |
| 5. |
Date Posted: 01 Apr 2022 [6th last week] |
496 |
| 6. |
Date Posted: 21 Mar 2022 [5th last week] |
479 |
| 7. |
Date Posted: 21 Mar 2022 |
257 |
| 8. |
Date Posted: 09 Feb 2022 |
219 |
| 9. |
Date Posted: 10 May 2022 [new to top ten] |
166 |
| 10. |
Date Posted: 15 Mar 2022 [9th last week] |
138 |
May 21, 2022 | Permalink | Comments (0)
Friday, May 20, 2022
Levine on Diversion and Victims' Rights
Kay Levine (Emory University School of Law) has posted Victims' Rights in the Diversion Landscape (SMU Law Review, Vol. 74, No. 3, 2021) on SSRN. Here is the abstract:
In this Article, I explore the practical and theoretical conflicts that might
surface when the diversion movement and the Victims’ Rights Movement
intersect. I focus on two possible sites of tension: victim input into the diversion
offer and the victim’s right to receive restitution as a term of diversion.
Protocols to give victims greater voice in the justice process have been
a mainstay of the burgeoning Victims’ Rights Movement for the past several
decades, but I argue that those protocols must be understood within
(and thus limited by) the contexts of fiscal responsibility, compassion for
the offender, and proportionality in the justice system that lie at the heart of
diversion schemes. Any other arrangement risks elevating retribution over
rehabilitation and inserts a level of arbitrariness into the diversion process
that would subvert our commitment to fairness and transparency.
surface when the diversion movement and the Victims’ Rights Movement
intersect. I focus on two possible sites of tension: victim input into the diversion
offer and the victim’s right to receive restitution as a term of diversion.
Protocols to give victims greater voice in the justice process have been
a mainstay of the burgeoning Victims’ Rights Movement for the past several
decades, but I argue that those protocols must be understood within
(and thus limited by) the contexts of fiscal responsibility, compassion for
the offender, and proportionality in the justice system that lie at the heart of
diversion schemes. Any other arrangement risks elevating retribution over
rehabilitation and inserts a level of arbitrariness into the diversion process
that would subvert our commitment to fairness and transparency.
May 20, 2022 | Permalink | Comments (0)
