Archive for the ‘Criminal Law’ Category

Symposium Next Week on “A Legal Theory for Autonomous Artificial Agents”

posted by Frank Pasquale

On February 14-16, we will host an online symposium on A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence White. Given the great discussions at our previous symposiums for Tim Wu’s Master Switch  and Jonathan Zittrain’s Future of the Internet, I’m sure this one will be a treat.  Participants will include Ken Anderson, Ryan Calo, James Grimmelmann, Sonia Katyal, Ian Kerr, Andrea Matwyshyn, Deborah DeMott, Paul Ohm,  Ugo Pagallo, Lawrence Solum, Ramesh Subramanian and Harry Surden.  Chopra will be reading their posts and responding here, too.  I discussed the book with Chopra and Grimmelmann in Brooklyn a few months ago, and I believe the audience found fascinating the many present and future scenarios raised in it.  (If you’re interested in Google’s autonomous cars, drones, robots, or even the annoying little Microsoft paperclip guy, you’ll find something intriguing in the book.)

There is an introduction to the book below the fold.  (Chapter 2 of the book was published in the Illinois Journal of Law, Technology and Policy, and can be found online at SSRN).  We look forward to hosting the discussion!

Read the rest of this post »

  February 8, 2012 at 10:43 am   Posted in: Contract Law & Beyond, Criminal Law, Current Events, Cyberlaw, Social Network Websites, Symposium (Autonomous Artificial Agents), Technology, Tort Law   Print This Post   10 Comments

The Congressional Regulation of Inactivity

posted by Gerard Magliocca

As the briefs in the Affordable Care Act litigation are still being filed before the Supreme Court, I was intrigued by this new paper by Professor Corey Yung on “The Incredible Ordinariness of Federal Penalties for Inactivity that sheds new light on the problem before the Justices.  Here is the Abstract:

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Those arguing that insurance mandate in the recent health care reform legislation, the Patient Protection and Affordable Care Act (ACA), is unconstitutional have prominently and repeatedly advanced the claim that the mandate’s punishment of personal inactivity is an unprecedented exercise of federal power. That contention is simply and unequivocally false. Federal criminal law contains scores of provisions that facially or in application punish inactivity by individuals. These criminal statutes regulating inaction include not just traditional crimes by omission where a common law duty is violated, but also offenses related to registration, record keeping, possession, receipt, preventive measures, nondisclosure, organizational, misprision, and obstruction. By providing this account of criminal laws punishing and regulating inactivity, this Essay puts the ACA’s insurance mandate in the larger context of federal laws at issue if the mandate is held to be unconstitutional by the Supreme Court. The case of the ACA in regard to the Commerce and Necessary and Proper Clauses is not merely about the enforcement mechanism used for a single health care law as many have contended–it is about the shape and scope of federal criminal law that has been in place for over fifty years.

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Of course, if you try to dismiss Professor Yung’s examples as the regulation of “activities,” then the decision not to purchase health care is probably also an activity.

  January 30, 2012 at 8:14 pm   Posted in: Constitutional Law, Criminal Law   Print This Post   16 Comments

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

posted by Derek Bambauer

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »

  January 24, 2012 at 12:05 pm   Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology   Print This Post   9 Comments

SOPA and the Fight for Control of Online Content

posted by Frank Pasquale

I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, Gerard Magliocca, and Derek Bambauer.

  January 18, 2012 at 2:10 pm   Posted in: Criminal Law, Current Events, Cyberlaw, Intellectual Property, Technology   Print This Post   4 Comments

Russian Human Rights Council Recommends Quashing Khodorkovsky’s Conviction

posted by Jeffrey Kahn

Just before Christmas, Russian President Dmitrii Medvedev’s Council on the Development of Civil Society and Human Rights recommended that the December 2010 conviction of Yukos-Oil-CEO-now-prisoner Mikhail Khodorkovsky be annulled.  That announcement (unfortunately, only available in Russian, but reported by the BBC, among others) coincides with massive street protests not seen in Russia since shortly before Christmas 1991, when the Soviet Union collapsed. 

The Council’s recommendation was based on a 427-page report on Khodorkovsky’s conviction that the Council gave to President Medvedev.  The report contained the analysis of nine scholars that the Council selected last spring from Russia, Germany, the Netherlands, and the United States.  I was the American contributor.  The report on the Council’s website is in Russian, but you can find an English-version of my portion of the document here. 

The Khodorkovsky case will be the focus of a “hot topics” panel on Friday morning, January 6, at 10:30 at the AALS Conference in Washington D.C.  How does the case relate to the recent protests in Russia?  What does it say about the rule of law in Russia and prospects for reform?  Come to the panel and find out!

  December 31, 2011 at 9:24 am   Posted in: Civil Rights, Courts, Criminal Law, Criminal Procedure, Current Events, Uncategorized   Print This Post   No Comments

Do Computer “Unlawful Access” Laws Exempt Improperly Accessing a Spouse’s Account?

posted by Daniel Solove

Short answer: No.  This case got considerable media attention and outrage when it was first reported.  A man accessed his wife’s email without her consent.  They were separated.  He was charged with violating the Michigan’s computer unlawful access law, MCL 752.795, which is similar to the federal Computer Fraud and Abuse Act (CFAA).  Now a court of appeals has rejected the spouse’s argument.  From the Detroit Free Press:

A Rochester Hills man charged with a 5-year felony for reading his wife’s e-mail pledged today to take the matter to the state’s highest court after a lower court refused to dismiss the charge.

In a written opinion released this morning, the Michigan Court of Appeals rule that Leon Walker should proceed to trial on charges that he gained unlawful access to his then-wife Clara Walker’s Gmail account in the summer of 2009.

His 2010 arrest prompted widespread outrage and a national debate about computer privacy in the marital home. But in today’s decision, the three-member appellate panel said Michigan’s computer hacking law has “no spousal exception,” and the law as written applies to Walker’s case. The judges also noted discussions in Michigan’s legislature to amend the law to exclude spouses.

“However, unless and until such legislation occurs, this court is left with the statute as written,” the court said.

The opinion is here.  From the opinion:

Second, there was evidence that defendant acted without authorization when he accessed his estranged wife’s Gmail account. Defendant’s wife testified that her Gmail account was a personal account and that she never shared her passwords for the account with defendant or granted him permission to access the account. Further, she allowed defendant to use her computer only when it needed a repair. Defendant admitted to the police that he accessed his wife’s Gmail account by guessing her password. These facts support a reasonable inference that defendant lacked authorization for his access of his wife’s Gmail account.

It seems to me that spouses should not be given special exemptions to hack into each other’s accounts.  Breaking into one’s private accounts is a violation no matter who does it.  Even spouses are entitled to have private accounts and things, and the law should protect them.

  December 29, 2011 at 2:54 am   Posted in: Criminal Law, Privacy, Privacy (Electronic Surveillance)   Print This Post   2 Comments

The Poor Get One Strike; Banks Get Thousands

posted by Frank Pasquale

Most readers of this blog are already familiar with draconian treatment of the poor by various law enforcers and state bureaucracies. Here’s yet another example:

[A] one-strike clause . . . allows the public housing authority to evict [the tenant] if any member of her household or any guest engages in certain kinds of criminal activity. . . . Stories abound about the one-strike policy being wielded in seemingly egregious ways to evict “innocent tenants,” such as a disabled elderly man in California whose caretaker was caught with crack. . . .The Chicago Reporter wrote in September that 86 percent of Chicago’s one-strike evictions last year did not arise from criminal activity by the person named on the lease.

“These policies, the effect of them on children, families, women, families of color, were not thought through. And I think now a national conversation is beginning to rethink that,” said Ariela Migdal, a senior staff attorney with the Women’s Rights Project of the American Civil Liberties Union. Migdal pointed to a June 2011 letter from HUD Secretary Shaun Donovan to public housing directors, encouraging the directors to use their “broad discretion” to create a flexible set of standards for who will be admitted to and allowed to stay in public housing.

Certainly the Obama administration has ample experience deploying “discretion” and “mercy” in other areas.  For example, consider Barry Ritholtz’s summary of a shocking Reuters report by Scott Paltrow on foreclosure fraud:
Read the rest of this post »

  December 26, 2011 at 12:26 pm   Posted in: Corruption, Criminal Law, Financial Institutions, Law and Inequality, Tax   Print This Post   7 Comments

Back for One (or Two) Last Things—An Offer and a Request

posted by Kyle Graham

D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.

So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester.  (Emphasis here on “hopefully.”)

2. Criminal Procedure < 1965 Interview Subjects Wanted

Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.

In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.

I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.

In any event, happy holidays to you all.

  December 17, 2011 at 4:44 pm   Posted in: Criminal Law, Criminal Procedure, History of Law, Teaching   Print This Post   One Comment

The Other Face of Torture

posted by Kyle Graham

Earlier this week, I discussed a “pleading crime,” misprision of a felony.  Pleading crimes are offenses that parties rely upon to terminate criminal cases by way of plea deals.  Today, prompted by the recent acquittal of a California man on charges that he tortured and murdered a former adult film actress, I’ll talk about another, arguably more troubling class of criminal offenses within the criminal-code “ecosystem”—“charging crimes.”

Charging crimes are offenses that prosecutors commonly rely upon to persuade a defendant that a plea to lesser or other charges is in their best interests.  Charging crimes are often peripheral to the gravamen of a defendant’s misconduct, such that a prosecutor may not insist on convictions on these counts, on top of convictions of the “core” charge or charges.  Nevertheless, charging crimes raise the prospect of a stiffer sentence upon conviction, which gives the defendant an incentive to come to terms with the prosecution, and thus, an incentive for the prosecutor to include these counts in the initial charging mix.

OK, but what does all this have to do with torture?  Well, while I haven’t done much research on the existence of charging crimes within state codes (most of my work on this point involves federal offenses that may amount to charging crimes, like use of fire or explosives in the commission of a federal felony [18 U.S.C. § 844(h)], witness tampering [18 U.S.C. § 1512(a)], and hostage taking [18 U.S.C. § 1203]), I suspect that under California law, torture may represent such an offense.

Here in California, the crime of torture (Penal Code, § 206) occurs when an individual, acting “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury” on the person of another.  Torture is punishable by a life term in prison (a defendant sentenced to life in California may be eligible for parole in as little as seven years, however).

Torture is broadly worded, such that it’s not that hard to prove; it overlaps with several other crimes; and it carries severe sentencing consequences.  These circumstances make torture susceptible to charging by those prosecutors who may, in the final analysis, care less about what particular crimes a specific defendant is convicted of than about the defendant receiving a particular dollop of custody time. Toward this purpose, the in terrorem effect of a torture count may encourage a defendant charged with this offense to plead guilty to lesser crimes, such as assault, that carry shorter sentences than the torture offense—but enough time to satisfy the prosecution (and judge).  In return, the torture count will be dismissed, and its life term averted.

These situations aren’t merely theoretical.  Recently, in San Jose, two brothers accepted plea deals to lesser charges that carry sentences of (respectively) two to seven and two to eight years in prison, after they were charged with torture for assaulting a former friend whom they suspected of molesting an eight-year-old girl (the stepdaughter of one of the two defendants).  In matters such as these, a torture charge effectively creates a high-stakes game of chicken between the prosecution and the defense, except that the prosecution is driving an 18-wheeler; the defendant, a subcompact.

All this is not to say that defendants charged with torture or related offenses are not accused of serious crimes—they are; nor that these defendants, if convicted, should not be held accountable for their actions—they should be; nor that the torture charges are somehow unsupported by the evidence in these cases—they are, which is the very problem. Instead, the point is simply that by creating such a broad crime that carries such a severe sentence, California voters (torture having been enacted by initiative in 1990) have provided prosecutors with a very substantial bargaining chip, and they can’t be too surprised when, as in the San Jose case, it’s used to win some pots that one might wish had gone unclaimed.

  December 15, 2011 at 1:58 am   Posted in: Criminal Law, Criminal Procedure   Print This Post   3 Comments

Criminal Codes as Ecosystems: The Curious Case of Misprision of a Felony

posted by Kyle Graham

Criminal codes sometimes remind me of ecosystems. Like organisms in an ecosystem, crimes within a code can be connected to one another in interesting and unexpected ways.

I’ll explain this analogy by describing a federal crime that doesn’t get much attention: misprision of a felony (18 U.S.C. § 4). Misprision of a felony occurs when a person, “having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States.”

This crime seems pretty banal; it’s kind of like the algae of the federal criminal code.  You never hear about a complex, multi-agency investigation into misprision of a felony.  But, like algae, misprision of a felony serves very important purposes within its environment. It is what I call a “pleading crime,” used to resolve a wide range of matters in which a federal prosecutor, for one reason or another, either (1) doesn’t want to charge a potential defendant with the “concealed” substantive crime (even though there might be sufficient evidence to charge the person with, and convict them of, this offense), but does want to charge them with a lesser, related crime; or (2) wants to resolve, via a plea bargain, a case in which the substantive crime was originally alleged, but as to which evidentiary problems or other reasons for compromise exist.

Misprision of a felony fills these roles because of its malleable nature (it applies to the concealment of any felony) and because of the sentence that adheres to the crime.  The United States Sentencing Guidelines prescribe a sentence for misprision that’s indexed to, but somewhat below, that of the concealed offense. This placement tees up misprision of a felony as a (to use Ronald Wright and Rodney Engen’s phrase) “landing point” for compromises in plea deals.

Federal charging and plea-bargaining data underscore this crime’s role as a case closer.  In federal criminal cases that terminated by plea between October 2002 and September 2007, misprision of a felony was the most serious charge at the time of initial filing in only around 600 cases (virtually all of which resulted in a guilty plea to the misprision charge, suggesting a pre-filing deal between the prosecution and defense).  Misprision was most serious charge at the time of case termination much more often, claiming this status in more than 2,300 matters.  The almost 1:4 ratio bespeaks the frequent utilization of misprision of a felony as a pleading crime.

And so, just like species in an ecosystem, even the most humble crimes may serve important functions.   Though I’m still searching for the big-picture purposes of crimes such as acting or attempting to modify the weather without proper authorization (15 U.S.C. § 330a);  the misuse of the Swiss Confederation Coat of Arms (18 U.S.C. § 708); use of the United States Army or Air Force as a posse comitatus (18 U.S.C. § 1385); and the transportation of illegal dentures (18 U.S.C. § 1821).

  December 13, 2011 at 5:00 am   Posted in: Criminal Law, Criminal Procedure   Print This Post   5 Comments

More “Strikes”: An Unintended Consequence of Realignment?

posted by Kyle Graham

California’s counties are still figuring out how to adjust to “realignment,” the name given to the state’s efforts to comply with the judicial decree, upheld in Plata v. Schwarzenegger, that demands a reduction in the number of prisoners incarcerated in state prison.

Under one prong of this adjustment effort, many yet-to-be-sentenced convicts who once would have gone to state prison will serve their time in local jails, instead. As a general rule, defendants convicted of “serious” or “violent” felonies—also known as “strikes”—remain eligible for prison. (So do most sex offenders.) This dynamic begs the question: might realignment result in more “strike” convictions?

Here’s why this might occur:

1) While the state is footing some of the costs associated with realignment, no one knows if these payments will fully offset the costs of housing a prisoner in local jail. Meanwhile, the state is guaranteed to foot the bill if a defendant goes to state prison.

2) Furthermore, local judges and district attorneys might be loathe to clog up their jails with prisoners who will be taking up space there for several years, as might be the case post-realignment. Among the reasons why, a substantial body of long-term occupants may make it more difficult to accommodate the daily ebb and tide of short-term detainees.  Plus, some judges and district attorneys may have a lingering sense that some defendants who historically would have gone to prison should still go to prison, which now may occur only if the defendant is convicted of a strike.

3) In many cases, district attorneys have substantial discretion whether to allege, and insist upon a conviction for, a “strike.” For example, under California law, assault with force likely to produce great bodily injury is not, by itself, a strike. However, assault with force likely to produce great bodily injury that does produce great bodily injury is a strike. The threshold that caselaw and legislative history set for “great bodily injury” is not as high as one might think; on the right (or, depending on your perspective, wrong) facts, a broken jaw may suffice. Appreciating that the low bar for this “strike” may lead to disproportionate punishment, district attorneys sometimes choose not to allege a great bodily injury enhancement even when it would be justified. In other cases, prosecutors agree to dismiss the enhancement as part of a plea deal.

Put these facts together, and it seems at least possible that realignment will spur local district attorneys’ offices to charge “strikes” more often, and to insist upon more “strike” convictions in plea negotiations.  (Somewhat similar dynamics also may cause local judges to “strike” [which essentially means to remove, for sentencing purposes] prior strikes less often.)  I don’t know that this will occur, but it seems like a conceivable, if unintended, outcome.

If this result obtains, one response might be to think harder about requiring counties to foot at least some of the bill for the incarceration of the defendants they send to state prison. My colleague David Ball suggests as much in his recent paper Tough on Crime (on the State’s Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates —And Why it Should, which provides an interesting take on the subject.

  December 11, 2011 at 11:39 am   Posted in: Criminal Law, Criminal Procedure, Current Events   Print This Post   No Comments

Barry Bonds: The Likely Sentence

posted by Kyle Graham

Yesterday, federal prosecutors asked that Barry Bonds be sentenced to 15 months in prison, following his conviction on one charge of obstruction of justice (18 U.S.C. § 1503). A probation officer has recommended that Bonds receive only probation, and Bonds himself (understandably) agrees with the officer’s assessment.  How realistic are these respective sentencing requests?

We’ll start with the relevant Sentencing Guideline for obstruction of justice (USSG § 2J1.2), which recommends a sentence of 15-21 months for a first offender, such as Bonds.  These Guidelines are only advisory (though extremely important), of course; ultimately, the governing text is 18 U.S.C. § 3553(a), which enumerates the factors to be considered in the formulation of a criminal sentence.

I won’t go through those factors here. Instead, I’ll relate what other defendants, arguably similarly situated to Bonds, have received in recent cases. Here, I sifted through data collected by the Administrative Office of the United States Courts for FY 2003 – FY 2007, which I compiled into a single database for another project a while back. (For full citations of these datasets, please go to footnote 119 here.)

The AOUSC data capture any and all criminal cases that terminated in federal district court between October 2002 and September 2007, providing a wealth of information regarding each matter. I separated out from this mass of data the handful of cases that entailed a single conviction under 18 U.S.C. § 1503, without any convictions for other offenses. The data do not relate whether the defendant in each of these cases was sentenced as a first offender, or not; nor do they indicate whether any departures or enhancements applied in a particular case. But they do reveal the sentence that was imposed in each matter.

What I found was that 30 of the 83 defendants whose cases terminated within this time frame and who were arguably similarly situated to Bonds, in that they were convicted upon plea or guilty verdict at trial of a single count under 18 U.S.C. § 1503, received only probation (and, in some cases, a fine) as their sentences. The remaining defendants received prison time, with the median term being 24 months (again, some of these defendants were almost assuredly not first offenders, accounting for the longer sentences). The prison sentences were quite spread out, such that they did not form a bell curve; no more than five defendants received any specific term. Of these, five defendants received five-month terms, five received 12-month terms, and another five received 18-months terms.

So, if these numbers are any guide (which, I concede, they may not be), it looks like Bonds has a pretty good argument for probation.

  December 9, 2011 at 1:14 pm   Posted in: Courts, Criminal Law, Criminal Procedure, Current Events   Print This Post   No Comments

Resisting Elites’ Resistance to the Rule of Law (Review of Glenn Greenwald’s With Liberty and Justice for Some)

posted by Frank Pasquale

(Glenn Greenwald is having a fundraiser; link here.  I think his work is well worth supporting.)

There are few (if any) “free markets” in the largest sectors of the US economy. The health care industry is a labyrinth of public and private payers. Sectors known as “guard labor” are also larded with subsidies.  The Departments of Defense and Homeland security contract with thousands of companies.  The communications industry enjoys various government “givings.” And at this point, everyone knows that our largest financial institutions are taxpayer supported entities. Without the implicit backing of the federal government, they would collapse.

Government subsidy to large industries is not, in and of itself, a bad thing. When wages are stagnant and capital gains are mainly enjoyed by the top thousandth of the population, some entity has to spend for common provision. But the price of that spending should be higher standards for the propped-up industry. In health care, for instance, Medicare Conditions of Participation (and laws like the 1986 EMTALA) require many hospitals to provide care regardless of patients’ ability to pay. Tough fraud and abuse enforcement subjects providers’ bills to rigorous audits; privacy law will soon require audit-capability for digital medical records. Legislation passed in 2009 and 2010 creates many other requirements to channel private provision of health care toward more public ends. It’s certainly not a perfect system, but regulation is serious and purposeful. There are real consequences for many lawbreakers.

Glenn Greenwald tells a very different story about three other heavily subsidized industrial sectors.  He gives us serious reason to doubt that law has constrained banks, telcos, and the security sector when they posed critical threats to our economy, privacy, and liberty. His book With Liberty and Justice for Some is a passionate indictment of four distinct trends:

1) elites who violate laws with impunity,
2) retroactive immunity for acts unlawful at the time they were committed,
3) lobbyists’ power to influence legislators to render bad conduct lawful or even subsidized, and
4) a radical increase in punishment of those who fall outside the charmed circle of political and economic elites.

Greenwald has examined each area in his blog, as have other, lonely voices in corporate law (and a more robust chorus in communications & cyberlaw troubled by telecomms’ sweetheart deals). The vital contribution of With Liberty and Justice for Some is to show how the four trends mutually reinforce one another, contributing to a politics of wealth and privilege defense commonly known as oligarchy.
Read the rest of this post »

  December 9, 2011 at 8:51 am   Posted in: Book Reviews, Corruption, Criminal Law, Financial Institutions, Law and Inequality   Print This Post   One Comment

Ye Olde Professor’s Guide to Building an Exam Curve

posted by Kyle Graham

Shortly after I joined the faculty at Santa Clara Law, I wandered into the area of our library dedicated to a collection of Arcana and Occult texts. (Disclaimer: This section of the library does not, in fact, exist.) My goal: to find advice for drafting my first set of law-school examinations. I was concerned about making my exams too easy, and wanted some tips on how to construct tough, but fair, tests.

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear to this day, it leapt off the shelf and sprung open in my hand.

The page that revealed itself bore the image of a man dressed in ancient professor’s garb; of what precise vintage I could not tell, and there was no caption to disclose his identity. Instead, next to the portrait on the yellowed, crumbling page lay this text, written in what I hoped beyond hope was simply reddish-brown ink: “Ye Olde Professor’s Guide to Building an Exam Curve.”

Eureka! This was precisely what I had been looking for, so I read on. I will spare the reader a full recitation of the text that followed, save to say that H.P. Lovecraft himself might have claimed its contents. To ensure that my eyes, and my eyes alone, are the only ones scarred by what these pages revealed, I will simply summarize the advice it conferred, for professors and students to do with what they will. Much of this counsel concerned the concoction of Torts examinations, but may cast its dark shadow elsewhere.

The Guide related five tips:

1. Divide and Conquer

First, the accursed manual advised me to space the facts pertinent to a given issue far apart in a fact pattern. Are you a Torts professor, testing negligence per se? If so, relate the statute or ordinance in question at the very start or very end of the fact pattern, several paragraphs away from your discussion of the conduct that might implicate the measure. Or are you a Criminal Procedure professor, testing the good-faith exception to the exclusionary rule? Reference the date of the incident―say, November 2008―in passing in your introductory sentence, along with several other foundational facts; hold back on mentioning any search of the passenger compartment of a vehicle incident to arrest until a few paragraphs later; and, a few paragraphs after that, finally mention, in as offhand a manner as possible, that the resulting case is being tried in December 2011.  Voila—only the most careful exam connoisseurs will detect that you have laced their drink with a Belton/Gant/Davis good-faith issue.

2. Overlapping Theories, and Peripheral Plaintiffs and Defendants

Here, the guide recommended that I incorporate multiple theories of liability against a potential defendant; students may lock in on only one, and neglect the others. Likewise, defendants such as retailers in a strict products liability hypothetical, employers in a respondeat superior fact pattern, and landowners when intentional tortfeasors are afoot often prove difficult for students to spot, if only because their culpability seems so much less than that of other potential parties.  In the same vein, in a passage I cannot help but quote directly (for I could not have written it myself), the Guide advised, ”You will find that passing references to husbands and wives, who might have easily-overlooked wrongful-death or consortium claims, will oil the slope of your curve with student tears.”

3. Dogs that Don’t Bark

The Guide instructed that the best issues, from the standpoint of creating a curve, are those that do not require extensive factual build-up, or peculiar words or phrases that will blow their “disguise” (cf. any reference to “dynamiting” in a Torts examination), but which have a huge impact on the correct answer nevertheless. With Criminal Procedure, standing (in a situation involving multiple defendants) is just this sort of issue; with Torts, but-for causation can have a similar effect―so long as one avoids the word “caused.”

4. Sleight of Hand

Here, the Guide told me, begin by writing your fact pattern such that a particular issue looks like a slam-dunk, with a particular party getting his or her just desserts. Have a drunk driver blow through a stop sign and mow down a nun; he’s guilty of negligence, at least, of course. Or, notwithstanding Rule Three, supra, use variants of the word “conspiracy” to describe a cabal, e.g., “A and B conspired to rob a bank”; they’re clearly guilty, right? Feel free to employ adverbs liberally toward this purpose, e.g., “C cruelly drove drunk and cruelly blew through a stop sign and cruelly mowed down a nun.”

Then, Step Two: Subtly structure the facts such that A, B, and C in fact cannot be found liable. Maybe the nun was pushed in front of the drunk driver, such that even a sober driver who obeyed all traffic laws would have struck her. You get the idea. This way, a student’s moral intuition may cause them to overlook the more subtle reason why, in fact, the defendant can’t be found liable, or successfully prosecuted for a crime.

5. The Ghost

Perhaps most diabolically, the Guide advised me that the best cause of action is sometimes no cause of action at all. Students, it instructed, want to find causes of action, crimes, or other violations of the law within an issue-spotter; an exam that implicates innumerable theories, all of which fail for some reason or another, will prove especially vexing to all but the most confident students.

***

The reader will have to accept my account of this text’s existence, for as soon as I read the last words above the book shuddered and shook in my hands, then crumbled into dust.  Whether the text yielded wisdom, or only heartbreak, I cannot say; I recount this story solely for posterity, and desire not to be seen as an advocate of its mayhap baleful words.

  December 9, 2011 at 12:01 am   Posted in: Criminal Law, Criminal Procedure, Humor, Teaching, Tort Law   Print This Post   One Comment

Sandusky’s Law

posted by Kyle Graham

In the wake of the Penn State child-abuse scandal, authorities in several states have considered toughened and broader mandatory-reporting laws. These laws impose criminal penalties on certain adults, such as teachers and social workers, who fail to report known or suspected child abuse to the police.

I don’t have data on the number of prosecutions under existing mandatory-reporting laws, but others have written that these cases are relatively rare.   (And, if anything, toughening the laws by converting what are now misdemeanors into felonies will make prosecutions even less common.)  I’ve discussed elsewhere why prosecutors are often apathetic about new crimes. Here, I’ll simply point out that crimes like the mandatory-reporting offenses are quite peripheral to the everyday work of the criminal justice system.

Indeed, you might be surprised by how small a portion of any criminal code drives a very large percentage of the overall criminal docket.  To illustrate this point, a while back, in connection with some other research I am pursuing, I performed a back-of-the-envelope exercise using charging data collected from the Executive Office for United States Attorneys (EOUSA) Central Charge file for federal criminal cases that terminated in Fiscal Year 2009 (October 1, 2008 to September 30, 2009). I wanted to see (1) how many different crimes were encompassed within this dataset and (2) the number of crimes that accounted for 50,75, 90, 95 and 99 percent of these charges. (Here, keep in mind that, at least according to one source, as of 2008 there were an estimated 4,450 crimes across the federal criminal “code.” Though, in truth, no one really knows for sure, and much depends on how you go about identifying distinct “crimes.”)

Overall, the EOUSA data for federal criminal cases terminating in FY 2009 identify 1,547 distinct crimes as having been alleged in these cases.  This sounds like a lot, but keep in mind the 4,450-crime figure cited earlier; even acknowledging the apples-to-oranges comparison issue, it’s obvious that many—almost certainly most—federal crimes were not alleged in even a single one of these cases.

Of the crimes that were charged, just 14 accounted for 50.6 percent of the 191,884 counts in the FY 2009 dataset. They are, in descending order of frequency, 21 U.S.C. § 841(a)(1); 21 U.S.C. § 846; 8 U.S.C. § 1326; 18 U.S.C. § 922(g)(1); 8 U.S.C. § 1326(a); 18 U.S.C. § 1343; 18 U.S.C. § 1341; 21 U.S.C. § 841; 18 U.S.C. § 1344; 18 U.S.C. § 371; 8 U.S.C. § 1324(a)(1)(A)(ii); 18 U.S.C. § 924(c); 8 U.S.C. § 1324(a)(1)(A)(iv); and 18 U.S.C. § 1347. Few surprises here; drug crimes, felony re-entry, gun crimes, and fraud offenses represent federal prosecutors’ bread and butter.  (The fraud crimes are over-represented in this dataset relative to the number of defendants charged with these offenses, since a given case many involve dozens of fraud counts.) Meanwhile, just 61 crimes accounted for 75 percent of all counts; 164 crimes, 90 percent of all counts; 291 crimes, 95 percent of all counts, and 699 crimes, 99 percent of all counts.

I appreciate that this is a very rough exercise, to be viewed with a hefty pinch of salt.  To repeat, what may represent a single crime to one observer may constitute multiple offenses to another, and I did not review the dataset carefully to grasp the logic behind its crime-coding system (thus, for example, I don’t know why the EOUSA database distinguishes between 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841), or the accuracy of the data presented.

Nevertheless, even this simplistic inquiry underscores an important, and I believe incontestable, point: Vast portions of any criminal code are effectively inert.  My guess is that any new Sandusky’s Laws will join this moribund lot.

(This exercise used the following dataset: United States Department of Justice, Office of Justice Statistics, Bureau of Justice Statistics, Federal Justice Statistics Program: Charges Filed Against Defendants in Criminal Cases in District Court – 2009 (Study 30789).)

  December 5, 2011 at 1:38 pm   Posted in: Criminal Law, Criminal Procedure   Print This Post   No Comments

Neuroscience at Trial: Society for Neuroethics Convenes Panel of Front-Line Practitioners

posted by Amanda Pustilnik

Is psychopathy a birth defect that should exclude a convicted serial killer and rapist from the death penalty?  Are the results of fMRI lie-detection tests reliable enough to be admitted in court? And if a giant brain tumor suddenly turns a law-abiding professional into a hypersexual who indiscriminately solicits females from ages 8 to 80, is he criminally responsible for his conduct?  These were the questions on the table when the International Neuroethics Society convened a fascinating panel last week at the Carnegie Institution for Science last week on the uses of neuroscience evidence in criminal and civil trials.

Moderated and organized by Hank Greely of Stanford Law School, the panel brought together:

• Steven Greenberg, whose efforts to introduce neuroscience on psychopathic disorder (psychopathy) in capital sentencing in Illinois of Brian Dugan has garnered attention from Nature to The Chicago Tribune;
• Houston Gordon (an old-school trial attorney successful enough not to need his own website, hence no hyperlink), who has made the most assertive arguments so far to admit fMRI lie-detection evidence in a civil case, United States v. Semrau, and
• Russell Swerdlow, a research and clinical professor of neurology (and three other sciences!).  Swerdlow’s brilliant diagnostic work detected the tumor in the newly-hypersexual patient, whom others had dismissed as a creep and a criminal.

 

In three upcoming short posts, I will feature the comments of each of these panelists and present for you, dear reader, some of the thornier issues raised by their talks.  These cases have been reported on in publications ranging from the Archives of Neurology to USA Today, but Concurring Opinions brings to you, direct and uncensored, the statements of the lawyers and scientists who made these cases happen … Can I say “stay tuned” on a blog?

  November 20, 2011 at 12:39 pm  Tags: law & neuroscience, neuroethics  Posted in: Bioethics, Capital Punishment, Criminal Law, Evidence Law, Health Law, Psychology and Behavior, Uncategorized   Print This Post   One Comment

Bernard Harcourt’s Realist Political Economy

posted by Frank Pasquale

It’s becoming clearer that classic Keynesian stimulus—ranging from Obama’s minimalist jobs program to the robust visions of a Krugman or Delong—won’t be enough to get us out of the Great Recession/Lesser Depression. The exhaustion of conventional macroeconomic thought (chronicled in outlets like the Real World Economics Review) has cleared some space for more imaginative thinkers. As John Kay observes:

Economics is not a technique in search of problems but a set of problems in need of solution. Such problems are varied and the solutions will inevitably be eclectic. Such pragmatic thinking requires not just deductive logic but an understanding of the processes of belief formation, of anthropology, psychology and organisational behaviour, and meticulous observation of what people, businesses and governments do.

In this post, I want to briefly highlight Bernard Harcourt’s work in crossing disciplinary boundaries to engage in the synthesis necessary to truly understand our plight.

Consider the following paradoxes or contradictions, which will also be highlighted at a conference that Harcourt is keynoting:
Read the rest of this post »

  September 23, 2011 at 10:06 am   Posted in: Criminal Law, Culture, Economic Analysis of Law, Philosophy of Social Science, Uncategorized   Print This Post   3 Comments

Racial Profiling & Surveillance

posted by Frank Pasquale

You may have heard about “multiple passengers holed up in the bathroom” of a plane flying on Sunday, which “led to F-16s shadowing . . . it [as it] neared Detroit.” Turns out that the false alarm was sparked by a “half-Arab and half-Jewish” woman who sat between two South Asian passengers:

[O]n this flight she was sitting by chance in a row with two Indian-looking passengers, neither of whom knew the other or knew her. But collectively they aroused the suspicion of other passengers or crew, and when the plane landed, heavily armed troops stormed aboard, handcuffed the three of them, and took them off for extensive questioning. After which they were eventually released with “no charges filed.” Which is fair enough, considering that like everyone else on the plane they were simply trying to travel from Denver to Detroit and had done absolutely nothing wrong except to have “suspicious” looks.

Here is her first-hand account:

Someone shouted for us to place our hands on the seats in front of us, heads down. The cops ran down the aisle, stopped at my row and yelled at the three of us to get up. “Can I bring my phone?” I asked, of course. What a cliffhanger for my Twitter followers! No, one of the cops said, grabbing my arm a little harder than I would have liked. He slapped metal cuffs on my wrists and pushed me off the plane. The three of us, two Indian men living in the Detroit metro area, and me, a half-Arab, half-Jewish housewife living in suburban Ohio, were being detained.

The cops brought us to a parked squad car next to the plane, had us spread our legs and arms. Mine asked me if I was wearing any explosives. “No,” I said, holding my tongue to not let out a snarky response. I wasn’t sure what I could and could not say, and all that came out was “What’s going on?”. . . .

What is the likelihood that two Indian men who didn’t know each other and a dark-skinned woman of Arab/Jewish heritage would be on the same flight from Denver to Detroit? Was that suspicion enough? Even considering that we didn’t say a word to each other until it became clear there were cops following our plane? Perhaps it was two Indian man going to the bathroom in succession?

Combine this with Vance Gilbert’s “flying while black” story, and any number of others, and you do have to wonder about how easily the racialized paranoia of a few can be given the full backing of the government (if only for a few hours of fright for the victim while he or she is cleared). Having recently looked into some aspects of the surveillance state, I have to wonder: do these incidents generate secret “Suspcious Activity Reports” for the publicly vindicated victims? Are they a mark against them in some undisclosed TSA or fusion center databases? The FBI justified its Detroit action by stating “The public would rather us err on the side of caution than not.” Is there any way for targeted minorities to assure that the public’s irrational discrimination is not empowered and advanced by law enforcers who are willing to “see something” when anyone “says something?”

  September 13, 2011 at 10:41 pm   Posted in: Criminal Law, Criminal Procedure, Culture, Current Events, Privacy (Law Enforcement), Privacy (National Security)   Print This Post   10 Comments

Internet Thugs Misappropriate the Hacker Moniker

posted by Danielle Citron

I’d like to pick up on Olivier Sylvain’s post on the cyber mob Anonymous and take it in a slightly different direction.  Let’s step back to get a sense of the group dubbed Anonymous. The group originated on 4Chan’s /b/ forums and now has a serious presence on the wiki Encyclopedia Dramatica, YouTube, and Internet Relay Chat forums.  The group may now compromise several groups with different aims (see here for a discussion of splinter group more interested in so-called “pranks”, or in my view bigoted attacks, than strident “political activism” like DDos on PayPal, Visa, and the like).

It’s difficult to see how the group and its various permutations warrant the breathless admiration of journalists who dub them “hacktivists.”  A little step back to the original hackers of the early 1960s.  As Howard Rheingold explains (and Patricia Wallace concurs in her work), the term was coined to describe people who “create computer systems.”  The first people to call themselves hackers ascribed to an informal social contract called the “hacker ethic.”  This ethic included these principles:

“Access to computers should be unlimited and total.  Always yield to the Hands-On Imperative.  All information should be free.  Mistrust authority–promote decentralization.”

The original hackers were motivated by altruistic concerns.  Indeed, we owe a debt of gratitude to their broader community for helping design the Internet.  Our guest blogger and celebrity computer scientist Steve Bellovin was a key player in that community: in 1979, Bellovin, then at UNC for graduate school, and Jim Ellis and Tom Truscott, Duke grad students, created the first link between Duke and UNC, which later became Usenet, the oldest global virtual community.

Let’s compare the original hackers to the group(s) Anonymous, which exemplifies the destructive side of cyber anonymity.  From its beginnings, the group took its name because it believes its collective identity serves as a mask, letting them do and say things that would otherwise be out of bounds.  According to a YouTube posting from a group member, “We are Anonymous, a “people devoid of any type of soul or conscience” who form “a nameless, faceless, unforgiving mafia”—“we ruin the lives of other people simply because we can.”  Anonymous members describe themselves as “unencumbered by pointless ethics, foolish moralities, or arbitrary laws or restrictions.”  When Anonymous members engage in offline “raids,” they hide behind the Guy Fawkes mask design made famous by the film of Alan Moore’s graphic novel V for Vendetta.

The group (or part of it) has been rightly called an “Internet Hate Machine.”  Much of what it does is for the “lulz.”  It has attacked African Americans, women, LGBT individuals, Jews, and Muslims.  It urged members to “search and destroy” a popular female video blogger’s online identity.  The group hacked into her online accounts, posted doctored photographs of her being raped, and took down her videos.  On Encyclopedia Dramatica, group members listed feminist websites that should be shut down with distributed denial-of-service attacks and “image reaping”—flooding sites with traffic to use up their allocated bandwidth.  Members updated the wiki as they accomplished their goal.  Read the rest of this post »

  September 12, 2011 at 8:31 pm   Posted in: Anonymity, Criminal Law, Current Events, Privacy   Print This Post   11 Comments

From Safety Net to Dragnet

posted by Frank Pasquale

The fourth Class Crits conference will be held in DC in about a month. Titled “Criminalizing Economic Inequality,” it focuses on the US’s “increasing reliance on the criminal justice system to make and enforce economic policy.” A few recent items highlight the conference’s timeliness:

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming out of their own paychecks.”

Nationally, according to Kaaryn Gustafson of the University of Connecticut Law School, “applying for welfare is a lot like being booked by the police.” There may be a mug shot, fingerprinting, and lengthy interrogations as to one’s children’s true paternity. The ostensible goal is to prevent welfare fraud, but the psychological impact is to turn poverty itself into a kind of crime. Read the rest of this post »

  August 19, 2011 at 10:17 pm   Posted in: Criminal Law, Culture, Current Events, Immigration, Law and Inequality, Privacy   Print This Post   One Comment

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