CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Blockchain Forensics and Crypto-Related Cybercrimes Lin William Cong, Kimberly Grauer, Daniel Rabetti and Henry Updegrave Cornell University - Samuel Curtis Johnson Graduate School of Management, Chainalysis, Tel Aviv University - Coller School of Management and Chainalysis Date Posted: 16 Feb 2023 Last Revised: 12 Apr 2023	437
2.	After the Criminal Justice System Benjamin Levin University of Colorado Law School Date Posted: 13 Mar 2023 Last Revised: 24 Apr 2023	283
3.	Restorative Justice as Regenerative Tribal Jurisdiction Lauren van Schilfgaarde UCLA School of Law Date Posted: 06 Mar 2023 Last Revised: 11 Apr 2023	204
4.	The Minimalist Alternative to Abolitionism: Focusing on the Non-dangerous Many Christopher Slobogin Vanderbilt University - Law School Date Posted: 10 Mar 2023 Last Revised: 11 Apr 2023	183
5.	Brief of Professor Joel S. Johnson in Support of Petitioner, Dubin v. United States Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 04 Jan 2023 Last Revised: 05 Jan 2023	158
6.	State Debt-Based Driver’s License Suspension Laws Michael Leyendecker and Kate Elengold University of North Carolina at Chapel Hill, School of Law and UNC School of Law Date Posted: 08 Feb 2023 Last Revised: 12 Apr 2023	130
7.	Police-Made Law Brenner Fissell Villanova University Date Posted: 17 Mar 2023 Last Revised: 05 Apr 2023	104
8.	Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework Lauren Murtagh Independent Date Posted: 16 Mar 2023 Last Revised: 05 Apr 2023	95
9.	Beyond Bribery: Exploring the Intimate Interconnections Between Corruption and Tax Crimes Diane M. Ring and Costantino Grasso Boston College - Law School and Manchester Metropolitan University Date Posted: 28 Feb 2023 Last Revised: 17 Apr 2023	83
10.	Sentencing in an Era of Plea Bargains Jeffrey Bellin and Jenia Iontcheva Turner William & Mary Law School and Southern Methodist University - Dedman School of Law Date Posted: 30 Mar 2023 Last Revised: 25 Apr 2023	77

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Use and Misuse of Section 144 CrPC Vrinda Bhandari, Abhinav Sekhri, Natasha Maheshwari and Madhav Aggarwal Independent, Delhi High Court, Independent and Independent Date Posted: 22 Mar 2023	1,271
2.	Bail at the Founding Kellen Funk and Sandra G. Mayson Columbia University - Law School and University of Pennsylvania Carey Law School Date Posted: 28 Feb 2023	348
3.	Unconstitutional Police Pretexts Nadia Banteka University of the Pacific - McGeorge School of Law Date Posted: 28 Feb 2023	179
4.	The Invisible Driver of Policing Farhang Heydari Policing Project, NYU School of Law Date Posted: 01 Mar 2023 [5th last week]	166
5.	The Incoherence of Evidence Law G. Alexander Nunn University of Arkansas - School of Law Date Posted: 27 Feb 2023 [4th last week]	163
6.	Detecting Deep Fake Evidence with Artificial Intelligence: A Critical Look from a Criminal Law Perspective Francesca Palmiotto Hertie School Date Posted: 10 Mar 2023	156
7.	Revocation at the Founding Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 01 Mar 2023	137
8.	The Unconstitutional Conditions Vacuum in Criminal Procedure 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 Date Posted: 02 Mar 2023	131
9.	Proving Actionable Racial Disparity Under the California Racial Justice Act Colleen V. Chien, W. David Ball and William A. Sundstrom Santa Clara University - School of Law, Santa Clara School of Law and Santa Clara University - Leavey School of Business - Economics Department Date Posted: 27 Mar 2023	131
10.	The Prosecution Bar William Ortman Wayne State University School of Law Date Posted: 03 Mar 2023	119

Arnaud on Dual Sovereignty in the U.S. Territories

Emmanuel Arnaud (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Dual Sovereignty in the U.S. Territories (Fordham Law Review, Vol. 91, No. 5, 2023) on SSRN. Here is the abstract:

 

This Essay examines the emergence and application of the “ultimate source” test and sheds light on the dual sovereign doctrine’s patently colonial framework, particularly highlighting the paternalistic relationship it has produced between federal and territorial prosecutorial authorities.

Cohen et al. on Racial Bias, Accomplice Liability, and the Felony Murder Rule

G. Ben Cohen, Justin D. Levinson, and Koichi Hioki (University of Iowa -- College of Law, University of Hawaii at Manoa - William S. Richardson School of Law and Kobe University - Graduate School of Business Administration) have posted Racial Bias, Accomplice Liability, and the Felony Murder Rule: A National Empirical Study (Denver Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Inside the fraught history of American homicide law sit two long-criticized doctrines, felony murder and accomplice liability. Though each of these rules have separately faced intense criticism for their resistance to the supposedly foundational principles of moral culpability and individual responsibility, their legacy must also be defined by the way they function symbiotically and specifically to heighten racialized punishment. This Article addresses the weighty combined reach of the accomplice liability and felony murder doctrines and proposes that racial bias has fueled the operation and survival of the rules. Specifically, it suggests that implicit racial bias has led to the automatic individuation of white men who are involved in group crimes, while at the same time created automatic de-individuation for Black and Latino men in similar situations, rendering these two doctrines complicit in state sanctioned racialization.

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Sheley on Self-Defense and Political Rage

Erin L. Sheley (California Western School of Law) has posted Self-Defense and Political Rage (Texas A&M Law Review, 2023) on SSRN. Here is the abstract:

 

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree, and that juries tend to evaluate reasonableness claims according to their own political positions. All three of these phenomena create challenges for the rule of law due to the increased risk that factually similar cases will turn out differently and that the justice system will merely recreate the monomaniacal, us-versus-them polarization of society at large.

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Matulionyte on Facial Recognition Technology

Rita Matulionyte (Macquarie Law School) has posted two manuscripts on the subject on SSRN. The first is Transparency of Facial Recognition Technology and Trade Secrets. Here is the abstract:

 

The key ethical requirements for all AI technologies, including facial recognition technology (FRT), is their transparency and explainabiltiy. This paper first identifies the extent to which transparency and explainability is needed in relation to FRT among different stakeholders. Second, after briefly examining which types of information about AI could be potentially protected as trade secrets, it identifies situations where trade secret protection may inhibit transparent and explainable FRT. It then analyses whether the current trade secret law, in particular, the ‘public interest’ exception, is capable of addressing the conflict between the proprietary interests of trade secret owners and AI transparency needs of certain stake holders. This paper focuses on FRT in law enforcement, with a greater emphasis on real-time biometric identification technologies that are considered the highest risk.

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Bavli on The Incongruence Principle of Evidence

Hillel J. Bavli (Southern Methodist University - Dedman School of Law) has posted The Incongruence Principle of Evidence (99 Indiana Law Journal (forthcoming)) on SSRN. Here is the abstract:

 

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law - including Bayesian inference and cognitive psychology - to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make inferences and judgments. I apply this model to derive a principle that I refer to as the incongruence principle of evidence. It states that the informational value of evidence at trial is not equal to the informational value of the same evidence in the real world. I show that, contrary to standard assumptions in evidence law, the trial setting degrades the value of evidence. It does this, on the one hand, by magnifying the influence of a juror’s priors - including biases based on the race, gender, appearance, and other background characteristics of trial participants - and on the other hand, by employing a unique decisional framework that is susceptible to an inferential problem called “overfitting,” which can lead to false-positive judgments when combined with biased and influential priors.

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Kaseff on Drug Detection Dog Alerts

Daniel Kaseff (Yeshiva University - Cardozo Law Review) has posted Far-Fetched Uses of Drug Detection Dog Alerts: A Case Note on United States v. Braddy (Cardozo Law Review, Vol. 44, No. 1, 2022) on SSRN. Here is the abstract:

 

This Case Note argues that the Eleventh Circuit was wrong in affirming the opinion of the district court that a weak dog alert is sufficient for establishing probable cause. Though probable cause does not necessarily require that a dog reach a specific final alert, the behavior of the dog indicating the presence of drugs must be based in objectivity, and not based on the kind of subjective interpretations made by the police officers in Braddy. This objective analysis should not be a rigid and defined test, but rather should look to the totality of the circumstances, as described in previous cases from the Supreme Court and the Eleventh Circuit.

Farber on Counter Terrorist Financing of Terrorist Salaries

Shai Farber (Bar-Ilan University - Faculty of Law) has posted Counter Terrorist Financing of Terrorist Salaries (Studies in conflict and terrorism) on SSRN. Here is the abstract:

 

The article aims to analyze and evaluate current trends in the global efforts to suppress a unique field in the financing of terrorism - terrorist salaries. The study seeks to cast new light on the origins and implications of the terrorism economy that deals with salaries, rewards, and other benefits paid to terrorists. The purpose of the new policy to suppress terrorist salaries is to halt terrorism by disrupting the channels of funding and diminishing the economic viability of terrorist activity. The policy to suppress terrorist salaries include diverse consequences: Humanitarian, security, legal, and economic interests, which are contradictory and require a balance between them. The article argues that despite objections, the idea to suppress terrorists' salaries is established in the global community norms, including the International Convention for the Suppression of the Financing of Terror, decisions of the Security Council, and domestic laws of Western countries. These global efforts are a turning point in the current strategies for counter-terrorism financing. This development shows a growing acceptance of the need for new and diverse tools to counter terror financing.

Buell on The Animal Crushing Offense Loophole

Ben Buell has posted The Animal Crushing Offense Loophole (Virginia Law Review Online, Forthcoming) on SSRN. Here is the abstract:

The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse. Hailed by humane groups as a watershed moment in the development of animal welfare law, the PACT Act created a new federal crime: “animal crushing”—i.e., the crushing, burning, drowning, suffocation, and impalement of living non-human creatures. But as the first defendants convicted under the PACT Act face sentencing in federal courts, judges and other stakeholders find little direction in the Federal Sentencing Guidelines. The United States Sentencing Commission, which until recently lacked a voting quorum, has yet to promulgate an amendment to the Guidelines that accounts for this change in the law. Instead, the current framework perpetuates a loophole in which the recommended penalty for animal crushing is typically less than the recommendation for offenders convicted of creating or distributing videos of that conduct. As federal prosecutors increasingly bring charges under the PACT Act, this gap in the Guidelines will continue to lead to unjust sentencing disparities that do not adequately reflect the depravity of animal torture.

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Chien et al. on Expungement

Colleen V. Chien et al. have posted several manuscripts about expungement. The first is Colleen V. Chien, Sonya Chalaka, and Chhavi Garg (Santa Clara University - School of Law, Santa Clara University - School of Law and Santa Clara University): The Minnesota Second Chance Expungement Gap. Here is the abstract:

Minnesota Statute Sections 609A, 243.166, and 609.02 define conditions under which individuals with criminal records can expunge their records. Ascertaining, then applying the law to a sample of 581,478 criminal histories of people with convictions records, and then extrapolating to the estimated population of 1.1M individuals in the state with criminal records, we estimate the share and number of people who are eligible for relief but have not received it and therefore fall into the “second chance gap,” the difference between eligibility for and receipt of records relief. Importantly, we assumed that all who met the threshold criteria for receiving expungement were eligible, and did not take into account the balancing test under 603A.03 Subdivision 5.e did not model legal financial obligations or other out of record criteria). We also estimate the aggregate earnings loss associated with people eligible for relief from convictions that have not yet received it. Racial disparities are significant in the Minnesota population of people with a criminal record, with an estimated 6.6% of white Minnesotans but 17.3% of Black Minnesotans, and over a quarter of American Indians or Alaskan Natives having a criminal record based on state criminal history data and Census data (2020).

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Gray on Fairness and Comity in Extradition Disclosure Applications

Kevin W. Gray (York University - Osgoode Hall Law School) has posted Reconciling Two Competing Tensions: Fairness and Comity in Extradition Disclosure Applications on SSRN. Here is the abstract:

 

In this paper, I consider the evolution of jurisprudence under ss. 29 and 32 of the Extradition Act. The initial position of the Canadian Government – that disclosure was not permitted under the Act to address Charter violations unrelated to Canadian gathered evidence – has been rejected on multiple occasions by the Supreme Court of Canada, most recently in Anekwu. The government has continued to argue for an extremely narrow disclosure requirement – claiming that disclosure is only required where there is a clear link between the issues at play during the committal hearing and alleged violations of the Charter. Labelling such attempts fishing expeditions lacking an err or reality, it has continued to reject judicial supervision of actions by Canadian authorities, even where there is no other realistic means of bringing them to light prior to extradition.

El-Sabawi on Death by Withdrawal

Taleed El-Sabawi (Florida International University (FIU) - College of Law) has posted Death by Withdrawal (UCLA Law Review, Vol. 71, No. 2, 2023) on SSRN. Here is the abstract:

 

No one deserves to die just because they use drugs. Yet, policies and practices in jails and prisons around the country continue to facilitate the death, pain, and suffering of people who use drugs by refusing to properly screen and medically manage withdrawal for persons in their custody. In Estelle v. Gamble, the Supreme Court established a constitutional right for incarcerated persons to receive adequate medical care. Further, it prohibited the denial of medical care that caused "the unnecessary and wanton infliction of pain" and required the definition of adequate medical care to comport with evolving standards of decency. This article argues that the failure to medically manage withdrawals in jail and prison custody amounts to deliberate indifference to a serious medical need and, as such, constitutes a violation of Fourteenth and Eighth Amendment protections. To do so, this article presents a detailed explanation of the current medical standards of care and demonstrates the different ways in which jails and prisons have ignored or failed to faithfully adopt such standards. This article excerpts firsthand accounts of persons in withdrawal to demonstrate the level of "unnecessary and wanton infliction of pain" caused by such deliberate indifference and argues that evolving standards of decency require the abandonment of current draconian and inhumane practices.

Fondacaro on Social Ecology, Preventive Intervention, and Administrative Transformation of the Criminal Legal System

Mark Robert Fondacaro (John Jay College - CUNY Graduate Center) has posted Social Ecology, Preventive Intervention and the Administrative Transformation of the Criminal Legal System on SSRN. Here is the abstract:

 

This article outlines an administrative model of criminal justice that provides a conceptual framework and empirical justification for transforming our criminal legal system from a backward-looking, adjudicative model grounded in principles of retribution toward a forward- looking model grounded in consequentialist principles of justice aimed at crime prevention and recidivism reduction. The historical roots and justifications for our current system are reviewed along with recent advances in the behavioral, social, and biological sciences that inform why and how it fuels injustice. The concept of social ecology is introduced as an organizing framework for 1) understanding why individuals do or do not obey the law, 2) identifying and evaluating what works in preventing crime and reducing recidivism, and 3) informing how the criminal law can be transformed into an integrated system of administrative justice that spans juvenile and adult criminal legal systems. Finally, the article provides a preliminary outline of the paradoxical promise of plea bargaining as a potential cornerstone of comprehensive systemic transformation.

Bouchagiar on Risk Assessment Technologies

George Bouchagiar (Aristotle University of Thessaloniki) has posted Risk Assessment Technologies (‘RAT’) in Criminal Justice: Time to Recognise the Legal Status of RAT? on SSRN. Here is the abstract:

 

Risk Assessment Technologies (‘RAT’) are currently used by criminal courts to evaluate defendants: their risk to reoffend. Despite critique on opacity, complexity, non-contestability or discriminative impact, some courts have favoured RAT-considerations, in light of alleged accuracy, effectiveness and efficiency. This contribution assesses whether and to what extent RAT can comply with evidence-related rules and fundamental human rights. After detecting key legal challenges in the United States (US), it makes recommendations for the proper regulation and consideration of RAT.

Dissent from cert denial in case alleging attorney failed to inform jury that defendant was not personally responsible for shootings

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented in Burns v. Mays. 

On Reforming Common Law Criminal Statutes: Did California Accidentally Kill the Second-Degree Felony Murder Rule?

I've posted my manuscript with the above title on SSRN. It addresses the California Legislature's reform of the state's harsh approach to killings during crime, a reform aimed primarily at severe first-degree murder penalties for those only peripherally involved in criminal activity. The legislation changed the first-degree felony murder rule and the natural and probable consequences doctrine. The language ultimately adopted, however, may have eliminated the second-degree felony murder rule in California--even for actual killers (those not liable merely as accomplices). The manuscript canvasses the legislative history suggesting that the legislature intended no such result. In the process, it illustrates the difficulties of legislative reform of common law criminal statutes. Comments welcome at kcole (at) sandiego.edu.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

 

Rank	Paper	Downloads
1.	Blockchain Forensics and Crypto-Related Cybercrimes Lin William Cong, Kimberly Grauer, Daniel Rabetti and Henry Updegrave Cornell University - Samuel Curtis Johnson Graduate School of Management, Chainalysis, Tel Aviv University - Coller School of Management and Chainalysis Date Posted: 16 Feb 2023	424
2.	After the Criminal Justice System Benjamin Levin University of Colorado Law School Date Posted: 13 Mar 2023 [3rd last week]	274
3.	Restorative Justice as Regenerative Tribal Jurisdiction Lauren van Schilfgaarde UCLA School of Law Date Posted: 06 Mar 2023 [4th last week]	198
4.	The Minimalist Alternative to Abolitionism: Focusing on the Non-dangerous Many Christopher Slobogin Vanderbilt University - Law School Date Posted: 10 Mar 2023 [new to top ten]	168
5.	Brief of Professor Joel S. Johnson in Support of Petitioner, Dubin v. United States Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 04 Jan 2023	155
6.	Holding Enablers of Child Sexual Abuse Accountable: The Case of Jeremy Bell Amos N. Guiora, Valeri Craigle and Aya Hibben University of Utah - S.J. Quinney College of Law, James E. Faust Law Library and Honors College, University of Utah Date Posted: 22 Feb 2023 [7th last week]	148
7.	State Debt-Based Driver’s License Suspension Laws Michael Leyendecker and Kate Elengold University of North Carolina at Chapel Hill, School of Law and UNC School of Law Date Posted: 08 Feb 2023 [8th last week]	125
8.	Defining 'Victim' Through Harm: Crime Victim Status in the Crime Victims' Rights Act and Other Victims' Rights Enactments Paul G. Cassell and Michael Ray Morris Jr. University of Utah - S.J. Quinney College of Law and University of Utah, S.J. Quinney College of Law, Students Date Posted: 22 Feb 2023 [9th last week]	113
9.	Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework Lauren Murtagh Independent Date Posted: 16 Mar 2023 [new to top ten]	92
10.	Beyond Bribery: Exploring the Intimate Interconnections Between Corruption and Tax Crimes Diane M. Ring and Costantino Grasso Boston College - Law School and Manchester Metropolitan University Date Posted: 28 Feb 2023 [new to top ten]	77

 

Next week's criminal law/procedure argument

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

• Tyler v. Hennepin County, Minnesota: (1) Whether taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment's takings clause; and (2) whether the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Use and Misuse of Section 144 CrPC Vrinda Bhandari, Abhinav Sekhri, Natasha Maheshwari and Madhav Aggarwal Independent, Delhi High Court, Independent and Independent Date Posted: 22 Mar 2023	1,122
2.	Bail at the Founding Kellen Funk and Sandra G. Mayson Columbia University - Law School and University of Pennsylvania Carey Law School Date Posted: 28 Feb 2023	331
3.	Unconstitutional Police Pretexts Nadia Banteka University of the Pacific - McGeorge School of Law Date Posted: 28 Feb 2023	179
4.	The Incoherence of Evidence Law G. Alexander Nunn University of Arkansas - School of Law Date Posted: 27 Feb 2023	160
5.	The Invisible Driver of Policing Farhang Heydari Policing Project, NYU School of Law Date Posted: 01 Mar 2023	150
6.	Detecting Deep Fake Evidence with Artificial Intelligence: A Critical Look from a Criminal Law Perspective Francesca Palmiotto Hertie School Date Posted: 10 Mar 2023 [7th last week]	144
7.	Revocation at the Founding Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 01 Mar 2023 [6th last week]	131
8.	The Unconstitutional Conditions Vacuum in Criminal Procedure 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 Date Posted: 02 Mar 2023	124
9.	Proving Actionable Racial Disparity Under the California Racial Justice Act Colleen V. Chien, W. David Ball and William A. Sundstrom Santa Clara University - School of Law, Santa Clara School of Law and Santa Clara University - Leavey School of Business - Economics Department Date Posted: 27 Mar 2023 [10th last week]	123
10.	The Prosecution Bar William Ortman Wayne State University School of Law Date Posted: 03 Mar 2023 [9th last week]	117