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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.



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

"Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances" Free Download
Georgetown Journal of Legal Ethics, Vol. 27, Issue 4, 2014, Forthcoming

ANIL KALHAN, Drexel University Thomas R. Kline School of Law
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On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk? practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised? the “appearance of [im]partiality? surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.?

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias? against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

"Urban Crime and Spatial Proximity to Liquor: Evidence from a Quasi-Experiment in Seattle" Free Download

ANDREW CHAMBERLAIN, University of California, San Diego (UCSD) - Department of Economics
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There is a well-established correlation between retail liquor outlets and crime, but few studies identify causal effects. I exploit a unique source of identifying variation to establish causality: a 2012 privatization of liquor retailing in Washington State that rapidly expanded liquor availability into preexisting grocery and drug store chains. Based on 166,000 police reports from Seattle and a fixed-effects panel model, I find a significant positive effect of liquor availability on neighborhood crime both in OLS and IV estimates. Reducing the distance to the nearest liquor retailer by one mile leads to an average treatment effect of roughly 6 to 8 percent higher monthly crime rates. Violent crime and drug crimes are persistently affected, with more transitory effects on shoplifting and other non-violent crimes. Using an event study framework I investigate whether the results are due to new crime or spatial redistribution of existing crime, finding evidence of both effects. Overall, expanded liquor retailing appears to have had a significant causal effect on crime.

"Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw" Free Download
Journal of Criminal Law and Criminology, Vol. 104, No. 3, p. 489, 2014

MARK W. BENNETT, U.S. District Court (Northern District of Iowa)
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Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random. Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range. This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.

"CEDAW's Promise for Strengthening Law-Enforcement Accountability to Survivors of Domestic and Sexual Violence in the United States" Free Download
Michigan State Law Review, Vol. 357, 2014

SANDRA S. PARK, ACLU Women's Rights Project
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This Article discusses how ratification by the United States of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) could strengthen law-enforcement accountability for responding to and preventing violence against women and girls in the United States. Advocacy in the U.S. primarily has focused on criminal justice system interventions to address domestic and sexual violence. But in far too many communities, law-enforcement officers respond to domestic and sexual violence in harmful and biased ways, allowing those who commit violence to do so with impunity and withholding governmental protection from survivors.

CEDAW ratification would empower survivors and advocates by establishing the government’s obligation to protect victims of gender-based violence and a right to a remedy for the violence when it occurs. Furthermore, CEDAW and the human rights framework highlight the intersectionality analysis, which is particularly important in scrutinizing law-enforcement responses to violence in the U.S. Lastly, CEDAW could be used to help transform the current U.S. movement to end gender-based violence, which often has chosen not to confront problematic policing practices.

"Copyrighted Crimes: The Copyrightability of Illegal Works" Free Download
16 Yale J.L. & Tech. 454 (2014)

ELDAR HABER, Tel Aviv University - Buchmann Faculty of Law
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Copyright law does not explicitly impose content-based restrictions on the copyrightability of works. As long as a work is original and fixed in a tangible medium of expression, it is entitled to copyright protection and eligible for registration, regardless of its content. Thus, child pornography, snuff films or any other original works of authorship that involve criminal activities are copyrightable. Such work can be highly profitable for its makers even though society does not necessarily benefit from, and might even be harmed by, the work. Along with revenue from sales, the author of an illegal work may also be able to collect damages for infringement. This scheme does not benefit society and should be revised.

After examining how the current copyright regime deals with works involving illegal activity, this article suggests a new framework. First, I review the elements of copyright and consider existing content-based restrictions in copyright, trademark, and patent law. After evaluating whether copyright law should impose content-based restrictions on illegal works, and whether such impositions would be constitutional, I conclude that creators should not benefit from works that are linked to harmful criminal activities. I propose a new framework for the copyright of such works that de-incentives their creation by eliminating profits from the works themselves and reducing profits from the felon’s other works due to his or her notoriety, while also compensating victims.

"Self-Defense Against Robots" Free Download

A. MICHAEL FROOMKIN, University of Miami - School of Law
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ZAK COLANGELO, University of Miami - School of Law
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Robots can pose-or can appear to pose-a threat to life, property, and privacy. May a landowner legally shoot down a trespassing drone? Can she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place to make the resolution of those questions easier and fairer to all concerned.

The default common-law legal rules governing each of these perceived threats are somewhat different, although reasonableness always plays an important role in defining legal rights and options. In certain cases - drone overflights, autonomous cars, national, state, and even local regulation - may trump the common law. Because it is in most cases obvious that humans can use force to protect themselves against actual physical attack, the paper concentrates on the more interesting cases of (1) robot (and especially drone) trespass and (2) responses to perceived threats other than physical attack by robots notably the risk that the robot (or drone) may be spying - perceptions which may not always be justified, but which sometimes may nonetheless be considered reasonable in law.

We argue that the scope of permissible self-help in defending one's privacy should be quite broad. There is exigency in that resort to legally administered remedies would be impracticable; and worse, the harm caused by a drone that escapes with intrusive recordings can be substantial and hard to remedy after the fact. Further, it is common for new technology to be seen as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great - or even extant. We therefore suggest measures to reduce uncertainties about robots, ranging from forbidding weaponized robots to requiring lights, and other markings that would announce a robot’s capabilities, and RFID chips and serial numbers that would uniquely identify the robot’s owner.

The paper concludes with a brief examination of what if anything our survey of a person's right to defend against robots might tell us about the current state of robot rights against people.

"Concealing Campus Sexual Assault: An Empirical Examination of Clery Act Data" Free Download

COREY RAYBURN YUNG, University of Kansas School of Law
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This study tests whether there is substantial undercounting of sexual assault by universities. It compares the sexual assault data submitted by universities while being audited for Clery Act violations with the data from years before and after such audits. If schools report higher rates of sexual assault during times of higher regulatory scrutiny (audits), then that result would support the conclusion that universities are failing to accurately tally incidents of sexual assault during other time periods. The study finds that university reports of sexual assault increase by approximately 44% during the audit period. However, after the audit is completed, the reported sexual assault rates drop to levels statistically indistinguishable from the pre-audit time frame. The results are consistent with the hypothesis that the ordinary practice of universities is to undercount incidents of sexual assault. Only during periods in which schools are audited do they appear to offer a more complete picture of sexual assault levels on campus. Further, the data indicate that the audits have no long-term effect on the reported levels of sexual assault as those crime rates return to previous levels after the audit is completed. This last finding is supported even in instances when fines are issued for non-compliance. The study tests for a similar result with the tracked crimes of aggravated assault, robbery, and burglary, but reported crimes show no statistically significant differences before, during, or after audits. The results of the study point toward two broader conclusions directly relevant to policymaking in this area. First, greater financial and personnel resources should be allocated commensurate with the severity of the problem and not based solely on university reports of sexual assault levels. Second, the frequency of auditing should be increased and statutorily-capped fines should be raised in order to deter transgressors from continuing to undercount sexual violence. The Campus Accountability and Safety Act, presently before Congress, provides an important step in that direction.

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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.

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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