The Most Influential Criminal Law Papers (Nov. 12, 2017)

One tool than many legal practitioners overlook is SSRN, an easy way to find the latest legal scholarship driving academic debate.  While recent scholarship isn’t as important as recent caselaw, these academic papers can influence both judges and politicians.  Thus, practitioners seeking to master their craft should stay abreast of the latest legal scholarship.  With that in mind, here are the top ten recent papers in criminal law and procedure journals.

  1. [1,028] Amicus Brief of Professor Orin S. Kerr in Carpenter v. United States, 16-402, last revised November 7, 2017, by Orin S. Kerr (The George Washington University Law School).  The key issue in Carpenter v. United States is whether the Fourth Amendment imposes limits on the collection of historical cell-site records.  Supporting the government’s position, Professor Kerr first argues that the “[c]ollection of historical cell-site records is the network equivalent of unprotected observation in public space.”  Next, he contends that the issue is better resolved by state and federal legislation because of the uncertain and evolving nature of technological change.  Third, he encourages the Court to reject the mosaic theory of the Fourth Amendment.  The mosaic theory holds that government evidence-collection that is not a search in isolation may become “a search when aggregated and analyzed over some period of time to create a mosaic picture of a person’s activities.”  Kerr’s primary attacks against the mosaic theory consist of the confusion it would create among police officers and the complexity of creating a parallel set of new Fourth Amendment rules should the Court adopt the approach.  Fourth, he argues that the reasonable expectation of privacy is irrelevant in the case given the petitioner attempts to prevent third parties from disclosing information to the government that was freely disclosed to them.  Finally, Kerr argues that recent statutory privacy protections for cell-site records do not reflect a societal expectation of privacy in those records nor should they influence the Fourth Amendment right to privacy.
  2. [931] Criminalizing Race: Racial Disparities in Plea Bargaining, last revised September 29, 2017, by Carlos Berdejó (Loyola Law School Los Angeles).  Examining significant racial disparities in the plea bargaining process, Berdejó finds that white defendants are 25% more likely than black defendants to have their initial charges dropped or reduced.  The disparity is greater for cases involving misdemeanors and low-level felonies than it is for higher-level felonies.  In cases involving severe felonies, white and black defendants have similar outcomes.  Based on the data, Berdejó concludes that the “patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.”
  3. [462] Forensic Science: Daubert’s Failure, last revised Oct. 2, 2017, by Paul C. Gianneli (Case Western Reserve University School of Law).  In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court of the United States held that proposed scientific testimony “must be supported by appropriate validation – i.e., ‘good grounds,’ based on what is known.”  The Daubert Court highlighted five factors in making this determination: (1) testing, (2) peer review and publication, (3) error rate, (4) maintenance of standards, and (5) general acceptance.  In the article, Gianneli argues that courts have failed to demand and properly evaluate Daubert‘s first factor – empirical testing.  Gianneli identifies several flawed forensic techniques, including “bite mark analysis, microscopic hair comparisons, arson evidence, and comparative bullet lead analysis.”  Further, firearms/toolmark and fingerprint examiners routinely present overstated and misleading conclusions.  Moreover, the justice system may be incapable of applying Daubert in criminal cases because “it does not have access to independent scientific expertise on an ongoing basis.”  Given these weaknesses in applying Daubert, Gianneli recommends that courts focus on foundational research and empirical testing and understand that there has been a “lost decade” in research for some forensic methods.  Finally, courts should control expert testimony to prevent statements suggesting or implying greater certainty than the tests will allow, e.g., “zero,” “vanishingly small,” “essentially zero,” “negligible,” “minimal,” “microscopic,” “100 percent certainty,” “to reasonable degree of scientific certainty,” “to the exclusion of all other sources,” and “practical impossibility.”
  4. [296] Stock Trades of SEC Employees, last revised November 9, 2017, by Shivaram Rajgopal (Columbia Business School) and Roger M. White (Arizona State University – School of Accountancy).  Stuff that, if I understood it, I would make way more money.
  5. [225] The Idea of ‘The Criminal Justice System’, last revised October 25, 2017, by Sara Mayeux (Vanderbilt University Law School).  This paper traces the history and theory of “the criminal justice system,” questioning whether it is time “to discard the idea, or at least to reflect more carefully upon its uses and limitations.”  Not limited to theory, Mayeux shows how idea of “the criminal justice system” affects judges and justices.  For example, Supreme Court justices often interpret the Fourth Amendment by weighing the societal costs of enforcing the right to privacy versus its benefits to individual.  Each procedural decision is assumed to have some “hydraulic connection” to crime rates.  The problem arises when judges and justices forget that systems are models, not reality.  The “system” sometimes causes wrong conclusions, stasis when there should be change, etc.
  6. [206] Understanding ‘Sanctuary Cities’, last revised October 3, 2017, by Christopher N. Lasch (University of Denver Sturm College of Law), Linus Chan (University of Minnesota School of Law), Ingrid V. Eagly (UCLA School of Law), Dina Francesca Haynes (New England Law), Annie Lai (University of California, Irvine School of Law), Elizabeth McCormick (The University of Tulsa College of Law), and Juliet P. Stumpf (Lewis & Clark Law School).  This article examines the Trump administration’s deportation plans and the diverse ways that localities have resisted those plans, including ” limiting compliance with immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails.”  Second, the authors analyze the various legal and policy justifications that sanctuary cities have advanced since Trump’s election.  These justifications include the need to maintain local control over criminal justice, strengthen community trust, prevent unlawful arrests, safeguard equal protection, and promote diversity and inclusivity,
  7. [169] ASIC Enforcement Outcomes: Trends and Analysis, posted November 1, 2017, by Ian Ramsay (Melbourne Law School) and Miranda Webster (Melbourne Law School).  More stuff that, if I understood it, I would make way more money.
  8. [156] Corpus Linguistics as a Tool in Legal Interpretation, posted October 4, 2017, by Lawrence M. Solan (Brooklyn Law School) and Tammy A. Gales (Hofstra University).  In their paper, Solan and Gales discuss four conditions in which judges may optimally use large amounts of “real world” texts to interpret legal documents.  First, the issue should be about the “ordinary” sense of an expression rather than the context of legislation.  Second, courts should decide what is “ordinary.”  For example, if a word is used in one sense one-third of the time and in another sense two-thirds of the time, is either way really ordinary?  Third, courts must also decide which corpus to use.  Finally, courts should consider the reasons that a particular meaning may have a weak showing in a corpus search: (1) Some meanings are possible but awkward; and (2) Some meanings are natural but the circumstances do not arise often.
  9. [153] Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability, posted October 4, 2017, by Christopher Slobogin (Vanderbilt University Law School).  Noting that previous articles have seldom clarified neuroscience’s contribution to criminal law, Slobogin “identifies five types of neuroscience evidence that might be presented by the defense and discusses when that evidence is material under accepted legal doctrine.”  These five types are: (1) evidence of abnormality, (2) cause-of-an-effect evidence, (3) effect-of-a-cause evidence, (4) individualized neuro-psychological findings compared against known performance baselines, and (5) individualized neuro-psychological findings compared against known performance baselines.
  10. [151] It is Easy to Be Brave from a Safe Distance: Proximity to the SEC and Insider Trading, by Trung T. H. Nguyen (Stanford University Graduate School of Business) and Quoc H. Nguyen (University of Illinois at Chicago – Department of Finance).  I’m really trying to avoid the SEC stuff (not football, people).  But, this article seems easy enough.  Basically, the Securities and Exchange Commission is more likely to investigate insider trading at companies that are closer to its offices (makes sense).  Relatedly, illegal insider trading increases the further a company is from an SEC office (also makes sense).  Woo hoo, got it.  Wall Street, here I come.


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