Faculty Scholarship Digest
On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise. (See Archives)
Ric Simmons, Private Plea Bargains, 89 North Car. L. Rev. 1125 (2011).
This comprehensive article re-conceptualizes the theoretical framework for the debate over private settlement of potential criminal cases, so-called private plea bargains. “Agreeing not to report a crime in exchange for consideration is illegal under blackmail statutes in every jurisdiction in the United States,” so private plea bargains are criminal, but, Ric argues, they occur nonetheless because (as the article shows) the incentives for such agreements can be great and the risk of detection small. The article then turns to consideration of whether the justifications for criminalizing blackmail apply in the context of private settlement of criminal matters. The justifications for criminalizing blackmail in general are controversial, and the article expresses considerable skepticism about them but, whatever their strength, argues that they do not apply in this context. In short, Ric concludes, the justifications for criminalizing blackmail do not justify criminalizing private settlement of criminal matters.
The article then turns to the plea bargaining comparison. After defending the view that the difference between private and public plea bargaining is “one of degree and not of kind,” the article analyzes the proffered benefits and harms of plea bargaining in general, a subject that has generated a substantial literature. From this in-depth and careful discussion, Ric concludes that many of the arguments against plea bargaining apply with even greater force in the private context and that some of the benefits of plea bargaining, particularly enhancing procedural justice and prosecution flexibility, do not apply at all. As a result, the article concludes that in most cases the criminal prohibition on private criminal settlements is well-justified, albeit not because of the traditional blackmail rationales. In one circumstance, private plea bargains ought to be permitted: “between individuals who already have a preexisting relationship . . . close enough that the victim is unlikely to report the crime . . . anyway and . . . [that] might be endangered if formal criminal charges are filed.” A final section of the article applies these insights to suggest amendments to existing law.
Ric Simmons, Searching for Terrorists: Why Public Safety Is Not a Special Need, 59 DUKE L.J. 843 (2010).
In this ambitious article, Ric undertakes a comprehensive review of the constitutional status of “suspicionless searches,” those situations in which the government conducts searches of individuals without any individualized suspicion. While forty-five years ago the constitutionally approved group of such searches was a null set, recent decades have made many such searches commonplace: examples run the gamut from screening at airports and courthouses, to drug testing in schools, to drunk driving checkpoints. The landscape of judicial decisions examining such searches under the Fourth Amendment is a rocky one, to put it mildly, but the article brings fresh understanding to the cases by dividing the territory into three parts.
The first was the era of hijackings and bombings associated with “sixties,” the last the era since 9/11, and the other the period in between. The article’s careful attention to the historical context of these decisions helps make sense of this very jumbled case law. Sense, yes, but constitutional justification, no. Ric concludes that suspicionless searches, particularly under the “special needs” exception to the Fourth Amendment where they are currently parked, cannot be justified.
This argument has many facets, but a key point is Ric’s rejection of the argument that these searches are not for crime control purposes, the legal fiction on which their justification has largely depended. After critically surveying and rejecting some other theories commentators have offered to justify suspicionless searches (a generalized reasonableness test, deference to democratic processes, consent, and a special “terrorism” exception), Ric offers an elegant solution of taking the special needs doctrine seriously. The article proposes not allowing the results of suspicionless searches to be used in criminal proceedings, thereby forcing such searches to “comport with the [original] legitimate justification for special needs searches,” which would render them constitutional (and hence protect them from attack by civil suits).
The final section of the article examines the ramifications of such an approach and responds to potential criticisms.
Ric Simmons, ChooseYourJudges.org: Treating Elected Judges as Politicians, 45 AKRON L. REV. 1 (2012).
The United States is the only country that elects its judges (and at the state level, 90% of judges face some form of elections). While the practice has long been subject to criticism for obvious reasons, Ric notes that “like it or not, judicial elections are here to stay” and sets about trying to improve the election process, rather than eliminate it. Having identified “the biggest problem with judicial elections” as “the ignorance of voters about the candidates,” Ric created the ingenious solution of a website to fill the gap. Visitors to the website take a short quiz to determine their preferences about judges, and then the website uses its database of candidates to make recommendations on whom to vote for. In 2010, the website operated for a month before election day, received 150,000 hits and gave out 6,000 quiz-based sets of recommendations. This article reviews and analyzes that process.
The article identifies two categories of information that might help voters provide meaningful input: the candidates’ background and qualifications (information that in fact is easily available but frequently does little to distinguish competing candidates) and the candidates’ “legal or political philosophy” (which is harder to gather and may be controversial as a tool, but can distinguish candidates). The website uses data from both categories, including “the prior voting record of judicial candidates, categorized by topic” to make recommendations, and Ric expressly defends the implicit assumption of the project: “that elected judges should be treated like politicians, and that voters who select them should be given the same information about the candidates’ views that these voters have in other types of elections.” An interesting by-product of the project is information about what voters say they want (and don’t want) in their judges—from practice experience, to a tendency to side with taxpayers against the government, to willingness to overturn precedent—and to see differences in this regard between Republican and Democratic voters.
Ric Simmons, The New Reality of Search Analysis Four Trends Created by New Surveillance Technologies, 81 MISSISSIPPI L.J. 991 (2012).
The Fourth Amendment set constitutional limits on the government’s ability to intrude in private affairs for law enforcement purposes, and this article identifies technological advance as the most important change for the issues in this area since the adoption of the Bill of Rights. At the title indicates, Ric identifies four trends stemming from these important changes to the world, which have simultaneously made criminal action both more devastating and more difficult to detect on the one hand, and made the scope and ease of governmental intrusion much greater on the other.
Ric argues that the challenges of regulating new technologies have regularly led the Supreme Court to erroneous decisions, which has led to Congressional intervention through legislation that regulates both law enforcement and private (potentially criminal) use of technology. From the Federal Communications Act of 1934 to the Patriot Act of 2001 and onward, courts now have a tangle of statutory law to deal with in addition to constitutional analysis. The article cites two other trends that it attributes in part to this first trend of legislative intervention: (i) a long-standing binary approach (search=probable cause requirement; not a search=no-Fourth Amendment concern) has been increasingly supplanted by a sliding scale of regulation, a process begun with the Court’s “reasonable suspicion” test in Terry v. Ohio but accelerated by legislative standards in the three and a half decades since, and (ii) increased deference to legislative standards by the courts, even to the extent of adaption of legislative tests constitutional jurisprudence. Finally, Ric notes a number of problematic formal tests and reasoning that courts have employed as a result of inadequate understanding of new technologies such as treating Fourth Amendment rights as coterminous with property rights or concluding that disclosure to any third-party eliminates all Fourth Amendment privacy interests.
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