Law Commons^™

Conviction By Prior Impeachment, Anna Roberts

Faculty Scholarship

No abstract provided.

Zappers - Technological Tax Fraud In New Hampshire, Richard Thompson Ainsworth

Faculty Scholarship

No other State is as vulnerable to Zappers as is the State of New Hampshire. Zappers and related software programming, Phantom-ware, facilitate an old tax fraud – skimming cash receipts. In this instance skimming is performed with modern electronic cash registers (ECRs). Zappers are a global revenue problem, but to the best of this author’s knowledge they have not been uncovered in New Hampshire. Seen from a global perspective however, it seems unlikely that they are not here.

New Hampshire’s fiscal vulnerability to Zappers comes from its heavy reliance on precisely the industry segment that has been found to be …

Penal Welfare And The New Human Trafficking Intervention Courts, Kate Mogulescu, Aya Gruber, Amy J. Cohen

Faculty Scholarship

No abstract provided.

Beyond Body Cameras: Defending A Robust Right To Record The Police, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Vat In The Gcc - Missing Trader Frauds, Richard Thompson Ainsworth, Musaad Alwohaibi

Faculty Scholarship

All VATs are susceptible to missing trader (MT) fraud. VATs adopted in an economic community are particularly more susceptible. The EU, for example, loses in excess of €100b annually to this fraud. Given the anticipated adoption of a European-style credit-invoice VAT in the GCC by January 1, 2018, this paper offers a technology-based solution involving the real-time tracking of taxable transactions with centrally collected (securely encrypted) data flows that are risk-analyzed by artificial intelligence (AI).

Private Prisons And The New Marketplace For Crime, André Douglas Pond Cummings, Adam Lamparello

Faculty Scholarship

A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function. We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes. We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses. We stop the current criminalization of immigration in its tracks and block the …

"Cerd-Ain" Reform: Dismantling The School-To-Prison Pipeline Through More Thorough Coordination Of The Departments Of Justice And Education, Lisa A. Rich

Faculty Scholarship

In the last year of his presidency, President Barack Obama and his administration have undertaken many initiatives to ensure that formerly incarcerated individuals have more opportunities to successfully reenter society. At the same time, the administration has been working on education policy that closes the achievement gap and slows the endless flow of juveniles into the school-to-prison pipeline. While certainly laudable, there is much more that can be undertaken collaboratively among executive branch agencies to end the school-to-prison pipeline and the endless cycle of people re-entering the criminal justice system. This paper examines the rise of the school-to-prison pipeline through …

Constitutional Retroactivity In Criminal Procedure, Alex Stein, Dov Fox

Faculty Scholarship

No abstract provided.

Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick

Faculty Scholarship

There is a 250-year-old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision-making models suggest that criminals must be risk seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different from law-abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill informed, and may therefore …

Belief States In Criminal Law, James Macleod

Faculty Scholarship

No abstract provided.

Reclaiming The Importance Of The Defendant's Testimony: Prior Conviction Impeachment And The Fight Against Implicit Stereotyping, Anna Roberts

Faculty Scholarship

No abstract provided.

Foreword: Innocent Until Proven Poor, Sara Zampierin

Faculty Scholarship

One of the core tenets of our criminal justice system is the presumption of innocence until proven guilty. As the title of the Symposium recognizes, we have allowed our justice system to ignore that presumption for people living in poverty in a variety of ways. Instead, it often inflicts additional and harsher punishment on individuals because of their poverty.

On ‘Violence Against Women’, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Copwatching, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Dna, Blue Bus, And Phase Changes, Edward K. Cheng, G. Alexander Nunn

Faculty Scholarship

In ‘Exploring the Proof Paradoxes’, Mike Redmayne comprehensively surveyed the puzzles at the intersection of law and statistics, the most famous of which is the Blue Bus problem, which prohibits legal actors from ascribing liability purely on the basis of probabilistic evidence. DNA evidence, however, is a longstanding exception to Blue Bus. Like Blue Bus, DNA presents probabilistic evidence of identity. Unlike Blue Bus, DNA is widely accepted as legitimate, even when it stands alone as so-called ‘naked’ statistical evidence. Observers often explain such DNA exceptionalism in two ways: either that people break down in extreme cases, or relatedly, that …

Like Snow To The Eskimos And Trump To The Republican Party: The Ali's Many Words For, And Shifting Pronouncements About, "Affirmative Consent", Kevin Cole

Faculty Scholarship

This short piece examines changes from prior drafts in the most recent draft (Preliminary Draft No. 6) of the American Law Institute's project on sexual assault law.

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Faculty Scholarship

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation …

The Prosecutor's Turn, Bennett Capers

Faculty Scholarship

No abstract provided.

Charging The Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons, Neil L. Sobol

Faculty Scholarship

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons. Criminal justice debt is the primary source for this imprisonment.

Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist …

The Under-Policed, I. Bennett Capers

Faculty Scholarship

No abstract provided.

How Criminal Law Can Help Save The Environment, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.

From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Modern-Day Monitorships, Veronica Root

Faculty Scholarship

When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a "Modern-Day Monitorship”. Modern-day monitorships are utilized in an array of contexts to assist in widely varying re­mediation efforts. This is because they provide outsiders with a unique source of information about the efficacy of the tarnished organization's efforts to resolve misconduct. Yet, despite their use in high profile and serious matters of organi­zational wrongdoing, they are not an outgrowth of careful study …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

Neuroscience And Behavioral Genetics In Us Criminal Law: An Empirical Analysis, Nita A. Farahany

Faculty Scholarship

The goal of this study was to examine the growing use of neurological and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005–12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Yet, criminal defendants are increasingly introducing such evidence to challenge defendants’ competency, the effectiveness of defense counsel at trial, and to mitigate punishment.

Adjudicating Risk: Aids, Crime, And Culpability, Aziza Ahmed

Faculty Scholarship

The AIDS epidemic continues to pose significant public health challenges, especially given that the spread of the virus outpaces the AIDS response.¹ Importantly, HIV continues to disproportionately impact socially and economically marginalized communities. In countries with concentrated epidemics,² it is racial minorities, sex workers, men who have sex with men, and drug users who face the brunt of the epidemic.³ In the United States, the data is startling⁴ : 44% of new infections were among African-Americans, and among African-Americans contracting HIV, 57% were among gay and bisexual men.⁵ In 2016, the CDC found that one …

For The Title Ix Civil Rights Movement: Congratulations And Cautions, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.

The Human Rights Of Sea Pirates: Will The European Court Of Human Rights Decisions Get More Killed?, Barry Hart Dubner, Brian Othero

Faculty Scholarship

No abstract provided.

Dna And Distrust, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Over the past three decades, government regulation and funding of DNA testing has reshaped the use of genetic evidence across various fields, including criminal law, family law, and employment law. Courts have struggled with questions of when and whether to treat genetic evidence as implicating individual rights, policy trade-offs, or federalism problems. We identify two modes of genetic testing: identification testing, used to establish a person’s identity, and predictive testing, which seeks to predict outcomes for a person. Judges and lawmakers have often drawn a bright line at predictive testing, while allowing uninhibited identity testing. The U.S. Supreme Court in …