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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

"Do Officials Extort More During Elections? Evidence from Micro-Data on Corruption in Five West African States" Free Download

JASPER JACK COOPER, Columbia University - Department of Political Science, Sciences Po
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In young democracies, does increased political competition reduce or worsen corruption? I present a theory in which competitive election cycles cause increases in corruption by state employees, focusing on three mechanisms linked to uncertainty about future leadership. To test the theoretical claims, I employ a cross-national time-series dataset on over 300,000 bribes paid by truck-drivers in West Africa. I find compelling evidence that elections increase the amount extorted by officials, but only when elections are competitive. When incumbents can lose elections, the reelection of an incumbent significantly reduces bribes to pre-election-cycle levels, while the election of a challenger temporarily increases or maintains bribes at unusually high levels. I attribute these dynamics to direct mechanisms influencing the risk-reward calculus of bureaucrats, rather than to instrumentalization of bureaucratic extortion by parties for the purposes of election campaigning. Buttressing this interpretation is the finding that sudden unexpected changes in leadership, such as the death of the President in Ghana or the unexpected coup in Mali, both in 2012, increase corruption only when they provoke uncertainty about leadership priorities. These findings, perhaps the first to look at the effects of leader turnover on bureaucratic extortion, nuance the optimism about the capacity of political reform to reduce corruption. In addition to increasing democratic competition, this study suggests that strong civil service protections and other measures to provide job and wage security to bureaucrats may be an important component of reducing extortion.

"Social Bias in the Policing of Illicit Drug Users in the UK and Australia: Findings from a Self-Report Study" Free Download

ALEX STEVENS, University of Kent
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MONICA BARRATT, UNSW Australia
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SIMON LENTON, Curtin University
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MARTIN RIDOUT, University of Kent
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ADAM WINSTOCK, Global Drug Survey
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This paper uses data from the Global Drug Survey to test the hypothesis that there is social bias in the policing of drug users, in the form of stop and search for drugs. The Global Drug Survey is a self-report, internet survey. In 2012, it included a non-random sample of illicit drug users in the UK (n=5,919) and Australia (n=5,707). We discuss previous research on social bias in policing. We argue that an intersectional approach is necessary in order to analyse patterns of stop and search for drugs across drug users who have various social statuses. In order to analyse the influence of various patterns of drug use, we create an inductive typology of a wide range of drug use types and temporalities, using latent class analysis. We use these latent classes, frequency of past month drug use and indicators of drug dependency alongside sociodemographic variables in binary logistic regression analyses of the odds of reporting being stopped and searched for drugs in the past year. We use these models to test both consensus and conflict perspectives on the policing of drug users. We find support for both perspectives in both countries. Patterns of drug use do significantly predict the odds of sampled drug users reporting police stop and search, as expected by the consensus perspective. But drug users who were younger, male and of less advantaged social status (as measured by education in the UK sample, and by minority ethnicity, income and unemployment in the Australian sample) also had significantly higher odds of reporting stop and search. This supports the conflict perspective on policing and our hypothesis that there is evidence of social bias in the policing of drug users in the Global Drug Survey sample.

"The Purpose, Nature and Constitutionality of the Presumptions of Section 69 of the Competition Act" Free Download
Canadian Competition Law Review, Vol. 28, No. 1 (Spring, 2015)

PIERRE-CHRISTIAN COLLINS HOFFMAN, McMillan LLP
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GUY PINSONNAULT, McMillan LLP
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The object of this paper is to discuss and analyze the purpose, evidentiary nature and constitutional aspects of s. 69(2) of the Competition Act. The section facilitates the admission in evidence of records found in the possession of a participant, on its premises or in the possession of one of its agents. Once the records are admitted as evidence, the section goes on to provide for rebuttable presumptions applicable against alleged participants to anti-competitive offences. These presumptions apply in both civil and criminal matters. In criminal cases, the section assists the prosecution in establishing a connection between an alleged agent of a participant and an alleged participant in that, in the absence of evidence to the contrary, the latter’s knowledge and authority with respect to anything done, said or agreed by the agent or records received or written by him is deemed to have been proven. In 2014, notwithstanding 60 years of reliance by prosecutors and the courts, the presumptions set out in s. 69(2) were declared unconstitutional and of no force and effect in criminal cases by a judge of the Ontario Superior Court in R v. Durward. There, the trial judge found that the presumptions violated the right of an accused to be presumed innocent as guaranteed by ss. 7 and 11(d) of the Charter and that such infringement failed a s. 1 analysis under R. v. Oakes. First, the authors review the historical background and parliamentary debates to determine the purpose of the legislature in enacting the predecessor to s. 69. The authors then turn to consider the burden of proof placed on the accused to rebut the presumptions and whether the inferences are permissive or mandatory upon the trier of fact. The authors then discuss the constitutional issues raised under ss. 7 and 11(d) in light of the court’s ruling in Durward. Finally, the article briefly examines whether the violation can or cannot be demonstrably justified under s. 1 of the Charter. In particular, the authors explore the question of the importance of the Competition Act’s objective in general and the specific purposes sought by the presumptions of s. 69(2). The authors respectfully counter the Superior Court in Durward in that all presumptions set out under s. 69(2) cast an evidentiary burden on the accused, who may rebut the presumptions by adducing evidence to prevent the deemed inference. A review of the jurisprudence shows that the presumptions do not directly force the inference of elements of anti-competitive offences. Rather, s. 69(2) requires the trier(s) of fact to infer certain facts, but the presumptions do not compel conviction, as the trier(s) may weigh the totality of the evidence and conclude that the accused is not guilty of the indicted offence notwithstanding the deemed inference assuming no rebuttal evidence is led. While permissive presumptions of guilt do not violate the presumption of innocence, this paper maintains that in certain circumstances, the mandatory fact inferences set out under s. 69(2) may nonetheless lead to an infringement of ss. 7 and 11(d). In any event, the deemed presumptions nonetheless likely pursue a “pressing and substantial objective? and therefore satisfy the first step of the Oakes analysis. The constitutional validity of s. 69(2) will turn on the proportionality analysis mandated by Oakes, that is whether the overall benefits of the provision outweigh the negative effects produced by the breach of the presumption of innocence. If there is a Charter breach, the Ontario Court of Appeal will have to decide whether s. 1 of the Charter ought or ought not to save the provision on the basis of proportionality and validate 60 years of previous litigation.

"Sex-Trafficking and the Power of the Police to Investigate: Need for Legal Reform" Free Download
COPS TODAY INTERNATIONAL, VOLUME 1 NO 1, PAGE 16-20, 2015

SARFARAZ AHMED KHAN, City University of Hong Kong (CityUHK) - School of Law, School of Criminal Justice and Administration
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In India, in order to combat sex-trafficking Immoral Traffic (Prevention) Act, 1956 (ITPA) was enforced which incorporates several penal provisions against traffickers as well provides for the protection of the victims. However, experience shows some reluctance on the part of investigating agencies to prosecute offenders under ITPA. In most circumstances only the provisions of the Indian Penal Code, 1860 (IPC) are used against the traffickers and brothel owners. This raises the issue whether there exists a deliberate reluctance on the part of the police or whether the laws create obstacles which relegate the police to a helpless situation under which they are forced to employ the provisions of the IPC instead of the ITPA. This paper argued that legislation (ITPA) itself incorporates obstacle in its enforcement by requiring special police officer under section 13 of ITPA. It is argued that we need legal reform to enable all investigating officers to investigate trafficking cases in order to combat sex trafficking effectively in India.

"Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights" Free Download
Boston College Law Review, Vol. 56, p. 553, 2015

SARAH FRENCH RUSSELL, Quinnipiac University School of Law
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Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.? Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering the courts. Yet courts and scholars have not addressed a fundamental question: Who is the sentencer? Can a judge decide that a particular juvenile should die in prison or does the Constitution give juveniles the right to require that a jury make that determination? Courts and state legislatures responding to Miller have assumed that a judge can impose life without parole on a juvenile, as long as the judge has discretion to impose a less severe sentence. But viewing Miller in light of the Supreme Court’s recent Sixth Amendment jury right jurisprudence raises questions about the role of the jury in these post-Miller sentencing hearings. In particular, does an Eighth Amendment limit on a sentence operate in the same way as a statutory maximum sentence and set a ceiling that cannot be raised absent a jury finding? If so, a jury must find the facts beyond a reasonable doubt that expose a juvenile to life without parole. Understanding how the Court’s recent Sixth and Eighth Amendment cases interact has broad implications for how sentencing authority is allocated not only in serious juvenile cases but also in our justice system more widely.

"What Mistake of Law Just Might Be: Legal Moralism, Liberal Positivism, and the Mistake of Law Doctrine" Free Download
18 New. Crim. L. Rev. 3 (2015)

AHSON AZMAT, Harvard University, Law School, Students
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This Article examines and evaluates a distinctive, increasingly popular account of the Mistake of Law doctrine. A growing number of legal theorists have criticized the traditional, positivist interpretation of the doctrine; legal moralists in particular have argued that the traditional interpretation is conceptually confused. Because the doctrine’s use of a strict liability punishment regime does not incentivize individuals to learn the law as well as a negligence regime might, legal moralists argue that the doctrine cannot be explained by a desire to incentivize legal knowledge. In evaluating this argument, the Article defends the traditional account, often identified with the liberal positivism of Justice Holmes. It concludes that the modal claims of legal moralists cannot be vindicated based on the arguments employed to defend them.

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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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To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

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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