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The Center for Law, Society, and Culture (http://www.law.indiana.edu/centers/lawsociety/) is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.


Table of Contents

Are Human Rights Owed Victims of Crime?

Robyn L Holder, Griffith Criminology Institute

Constitutional Malware

Jonathan Mayer, Stanford University

Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment

John F. Pfaff, Fordham University School of Law

An Economic Understanding of Search and Seizure Law

Orin S. Kerr, The George Washington University Law School

Homelessness and Crime: Do Your Friends Matter?

Lucia Corno, Queen Mary, University of London

Deterring Repeat Offenders with Escalating Penalty Schedules: A Bayesian Approach

Derek Pyne, Thompson Rivers University - School of Business and Economics
Stan Miles, Thompson Rivers University


LAW & SOCIETY: PUBLIC LAW - CRIME, CRIMINAL LAW, & PUNISHMENT eJOURNAL
Sponsored by: Indiana University Maurer School of Law

"Are Human Rights Owed Victims of Crime?" Free Download

ROBYN L HOLDER, Griffith Criminology Institute
Email:

In considering the question whether human rights are owed persons as victims of crime, the paper discusses areas of confusion and disputation. In particular, the paper disentangles different ways of categorizing ‘victim’, and the nature of rights. To ground the discussion, a sexual assault case and its progress through a criminal court in Australia is used to explore what procedural and substantive human rights of the victim-complainant may be at issue and how these rights may be engaged. As a composite of actual cases it demonstrates the deep structural tension to the role of public prosecution as ‘agents of States’ (International Association of Prosecutors 2003) and as a duty-bearer to citizens. The paper argues for closer attention to understanding ‘the state’ in relation to citizens as victims and witnesses. It develops a strategic approach to the progressive realization of the human rights of persons as victims of crime and abuse of power.

"Constitutional Malware" Free Download

JONATHAN MAYER, Stanford University
Email:

The United States government hacks computer systems, for law enforcement purposes. According to public disclosures, both the Federal Bureau of Investigation and Drug Enforcement Administration are increasingly resorting to computer intrusions as an investigative technique. This article provides the first comprehensive examination of how the Constitution should regulate government malware.

When applied to computer systems, the Fourth Amendment safeguards two independent values: the integrity of a device as against government breach, and the privacy properties of data contained in a device. Courts have not yet conceptualized how these theories of privacy should be reconciled.

Government malware forces a constitutional privacy reckoning. Investigators can algorithmically constrain the information that they retrieve from a hacked device, ensuring they receive only data that is — in isolation — constitutionally unprotected. According to declassified documents, FBI officials have theorized that the Fourth Amendment does not apply in this scenario. A substantially better view of the law, I conclude, is that the Fourth Amendment’s dual protections are cumulative, not mutually exclusive.

Applying this two-stage framework, I find that the Fourth Amendment imposes a warrant requirement on almost all law enforcement malware. The warrant must be valid throughout the duration of the malware’s operation, and must provide reasonable ex post notice to a computer’s owner. In certain technical configurations, the Constitution goes even further, requiring law enforcement to satisfy an exacting “super-warrant? standard. Reviewing public disclosures, I find that the government has a spotty record of compliance with these foundational privacy safeguards.

Moving beyond established doctrine and current practice, I normatively argue that the super-warrant standard should apply to government hacking. The same considerations that prompted heightened judicial review of wiretapping in the 1960s should prompt close scrutiny of law enforcement malware today.

"Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment" Free Download
Hastings Law Journal, Forthcoming

JOHN F. PFAFF, Fordham University School of Law
Email:

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.

In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.

My final conclusion, while quite tentative, is also somewhat surprising. Contrary to my expectations I held when I started work on this paper, it does not seem as if federal spending is bolstering state spending on incarceration to a significant degree. So cutting back on federal funding for criminal justice activities may not have much impact on state decisions about incarceration. Which, perhaps somewhat ironically, may suggest we want the federal government to spend more, not less, but to allocate the money in ways that encourage states to adopt reforms that push back against excessive incarceration.

"An Economic Understanding of Search and Seizure Law" Free Download
University of Pennsylvania Law Review, Forthcoming

ORIN S. KERR, The George Washington University Law School
Email:

This article uses economic concepts to understand the function of search and seizure law, the law governing government investigations that is most often associated with the Fourth Amendment. It explains search and seizure law as a way to increase the efficiency of law enforcement by accounting for external costs of investigations. The police will often discount negative externalities imposed by their work. Search and seizure law responds by prohibiting investigative steps when external costs are excessive. By conditioning law enforcement steps on specific factual predicates, the law channels government resources into welfare-enhancing investigative paths instead of welfare-reducing steps that would occur absent legal regulation. This perspective on search and seizure law is descriptively helpful; it provides a useful analytical language to describe the role of different Fourth Amendment doctrines; and it provides fresh normative insights concerning recurring debates in Fourth Amendment law.

"Homelessness and Crime: Do Your Friends Matter?" 
Corno L. "Homelessness and Crime: Do your friends matter?", The Economic Journal, Forthcoming

LUCIA CORNO, Queen Mary, University of London
Email:

This paper investigates the influence of friends on crime, using data I collected among the homeless. To estimate the causal effects of friends and of the share of criminal friends on crime, I rely on two instruments. The first is the share of rainy days during one's first year as homeless: rainfall fosters homeless' concentration in sheltered places and increases the probability of interactions. The second is the share of inmates released during one's first year as homeless, which affects the supply of criminal friends. I find that one additional friend decreases the probability of incarceration but criminal friends increases it.

"Deterring Repeat Offenders with Escalating Penalty Schedules: A Bayesian Approach" 
Economics of Governance, Vol. 16, No. 3, 2015 Forthcoming

DEREK PYNE, Thompson Rivers University - School of Business and Economics
Email:
STAN MILES, Thompson Rivers University
Email:

We model deterrence with costly punishment when criminals have different abilities. Abilities are unobserved by both criminals and the courts. Based on past successes, criminals update their priors on being high-ability criminals. Courts cannot observe a criminal’s total past offenses. They do know that criminals with more convictions were undeterred by previous penalties. Thus, they must have had more successes resulting in higher posterior probabilities of being high-ability criminals. Those with fewer convictions include more with lower posterior probabilities of being high-ability. Since they know that they are relatively more likely to be caught, they are deterred with lower penalties.

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About this eJournal

Sponsored by: Indiana University Maurer School of Law.


This eJournal distributes working and accepted paper abstracts of empirical or theoretical scholarship on topics related to crime, criminal law, and criminal punishment (including the death penalty), from any disciplinary perspective. Covered topics include victims' rights, criminal sentencing rules, criminal sentencing procedures, criminal punishment, theories of criminal punishment, alternatives to traditional criminal punishment, criminal law doctrine, and administration of criminal justice.

Editor: Joseph L. Hoffmann, Indiana University

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Directors

LAW & SOCIETY EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal

ALFRED C. AMAN
Roscoe C. O'Byrne Professor of Law, Indiana University-Bloomington, Maurer School of Law

JEANNINE BELL
Professor of Law, Indiana University Maurer School of Law

PETER C. CARSTENSEN
George H. Young-Bascom Professor of Law, University of Wisconsin Law School

KENNETH GLENN DAU-SCHMIDT
Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University Maurer School of Law

LAUREN B. EDELMAN
Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

HOWARD S. ERLANGER
Voss-Bascom Professor of Law, Professor of Sociology [Emeritus] Review Section Editor - Law & Social Inquiry, University of Wisconsin Law School

LUIS E. FUENTES-ROHWER
Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University Maurer School of Law

MARC S. GALANTER
John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison

MICHAEL GROSSBERG
Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University-Bloomington, Maurer School of Law

WILLIAM D. HENDERSON
Professor of Law, Indiana University Maurer School of Law

ANNA-MARIA MARSHALL
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology

LYNN MATHER
Professor of Law and Political Science, SUNY Buffalo Law School

JOYCE S. STERLING
Professor of Law, University of Denver Sturm College of Law