This Article calls into question the fundamental premises of models of judicial decisionmaking ut... more This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting. These judicial style types offer a fuller account of judicial behavior than any of the prior models utilized by scholars.
Modem American rape law is the product of historical contingencies, compromises, legislative inat... more Modem American rape law is the product of historical contingencies, compromises, legislative inattention, successful reforms, and backlash. It is neither a puzzle to be solved nor a coherent system of rules and values. Perhaps the clearest lesson to draw from our criminal laws regarding sex is that there is little logic, reason, or consistency among them. As a result of its checkered past, myths and misunderstandings about rape law abound. Jed Rubenfeld's recent article, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, exemplifies the confusion many courts, scholars, and members of the public have about modem rape law. Rubenfeld's specific proposal to base rape statutes on a right to self-possession, because it is derived from mistaken premises about rape law, would likely make legal over ninety percent of rapes in America. By replacing the non-consent element of modem rape statutes with a narrow force requirement, Rubenfeld's recommendation essentially decriminalizes non-stranger rape and rape by a victim's intoxication. In this Article, I examine the missteps Rubenfeld makes to explain why he ends up supporting such a disastrous conclusion. For example, Rubenfeld sees the need for his right to self-possession theory because he believes that autonomy is the sole basis that scholars offer for the foundation of rape law. However, rape is also properly supported as an independent offense by the nature and severity of harm caused, gender dynamics involved, and terror inflicted on the general population by widespread sexual violence. He also uses specious analogies and idiosyncratic conceptions of autonomy to establish the critical components of his argument. Despite the faults of his specific claims, Rubenfeld points rape scholars in a worthwhile direction. Instead of seeking diminishing returns with statutory tinkering, there is much to be gained by focusing on the foundations of rape law. By better integrating the fundamental values that warrant robust rape laws (autonomy, gender, harm, and terror), the major problems of high rape prevalence, law enforcement failure, and political hostility to rape victims that plague America can be better addressed. t Professor of Law, University of Kansas School of Law. I would like to thank Michelle J. Anderson, 1.
... 2) the instrumentalities of interstate commerce, or persons or things in interstate commerce... more ... 2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) activi-ties that substantially affect interstate commerce.14 In Morrison, the Court ... COREY RAYBURN YUNG ...
This Article calls into question the fundamental premises of models of judicial decisionmaking ut... more This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting. These judicial style types offer a fuller account of judicial behavior than any of the prior models utilized by scholars.
During the last two decades, many police departments substantially undercounted reported rapes cr... more During the last two decades, many police departments substantially undercounted reported rapes creating "paper" reductions in crime. Media investigations in Baltimore, New Orleans, Philadelphia, and St. Louis found that police eliminated rape complaints from official counts because of cultural hostility to rape complaints and to create the illusion of success in fighting violent crime. The undercounting cities used three difficult-to-detect methods to remove rape complaints from official records: designating a complaint as "unfounded" with little or no investigation; classifying an incident as a lesser offense; and, failing to create a written report that a victim made a rape complaint. This study addresses how widespread the practice of undercounting rape is in police departments across the country. Because identifying fraudulent and incorrect data is essentially the task of distinguishing highly unusual data patterns, I apply a statistical outlier detection tec...
This is a casebook for a first-year criminal law course at American law schools. It covers statut... more This is a casebook for a first-year criminal law course at American law schools. It covers statutory interpretation, actus reus, mens rea, attempt, conspiracy, homicide, rape, and general affirmative defenses. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.
This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar... more This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar in a variety of disciplines. It covers the criminalization of sexual deviance, rape, sexual assault, obscenity, non-consensual pornography, child molestation, incest, child pornography, sex trafficking, sex work, prostitution, sex offender registration, sex offender residency restrictions, and sex offender civil commitment. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms. If you are interested in using this book in your class, please email me at [email protected] from your official school account and I can provide access to an editable Word version of the casebook and accompanying slides. At some point in the future, I hope to have an available teacher's manual as well.
The growing enactment of sex offender restrictions has been one of the most notable developments ... more The growing enactment of sex offender restrictions has been one of the most notable developments in criminal law in recent decades. Thus far, courts across the country have been relatively complacent in allowing legislatures to test the limits of various civil liberties. The Ex Post Facto Clause has been among the first constitutional victims of these new laws. Whereas the Clause was once construed as a substantive right protecting citizens against vindictive or arbitrary legislative actions often based upon the hysteria of the moment, it has become a hollow shell of its original form. Because courts have narrowly construed the purpose of the Clause to fair notice, the right underlying the Clause has ceased being substantive and become entirely process based. The result of this transformation is that the courts have provided a set of sure-fire legislative recipes for extremely punitive criminal statutes to survive challenges based upon the Ex Post Facto Clause.
Full-text available at SSRN. See link in this record.The emerging war on sex offenders, as typica... more Full-text available at SSRN. See link in this record.The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention. Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society
This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar... more This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar in a variety of disciplines. It covers the criminalization of sexual deviance, rape, sexual assault, obscenity, non-consensual pornography, child molestation, incest, child pornography, sex trafficking, sex work, prostitution, sex offender registration, sex offender residency restrictions, and sex offender civil commitment. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.
This is a casebook for a first-year criminal law course at American law schools. It covers statut... more This is a casebook for a first-year criminal law course at American law schools. It covers statutory interpretation, actus reus, mens rea, attempt, conspiracy, homicide, rape, and general affirmative defenses. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.
New Criminal Law Review: An International and Interdisciplinary Journal, 2018
The American criminal justice system regarding sex is not just logically incoherent, it is also o... more The American criminal justice system regarding sex is not just logically incoherent, it is also often morally bankrupt because it remains unexamined and poorly understood. This Article contends that there are actually common roots underlying the seemingly oppositional forces of social panic and denial, which explain why the United States has an endemic sexual violence problem. Both panic and denial reinforce the implicit, and sometimes explicit, desire to avoid substantive engagement with socially contentious issues related to sex. The use of residency restrictions and civil commitment fit the modern social goal of putting sex offenders out-of-sight and out-of-mind. Yet, those same desires also explain America’s unwillingness to believe victims of sexual violence and police failure to properly investigate criminal complaints. In this way, sex panic dovetails with sex denial—in both instances, American culture only permits a limited discussion and understanding of sex and sexual viol...
All the world's a stage, And the men and women merely players: They have their exits and their en... more All the world's a stage, And the men and women merely players: They have their exits and their entrances; And one [wo]man in [her] time plays many parts. 1 Jacques' observation in Shakespeare's As You Like It describes the typical rape and sexual assault trial in the United States. The complainant 2 plays many different characters throughout the course of the trial. Prewritten cultural scripts dictate her 3 lines. The setting is both the courtroom
The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantia... more The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society.
This Article calls into question the fundamental premises of models of judicial decisionmaking ut... more This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting. These judicial style types offer a fuller account of judicial behavior than any of the prior models utilized by scholars.
Modem American rape law is the product of historical contingencies, compromises, legislative inat... more Modem American rape law is the product of historical contingencies, compromises, legislative inattention, successful reforms, and backlash. It is neither a puzzle to be solved nor a coherent system of rules and values. Perhaps the clearest lesson to draw from our criminal laws regarding sex is that there is little logic, reason, or consistency among them. As a result of its checkered past, myths and misunderstandings about rape law abound. Jed Rubenfeld's recent article, The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, exemplifies the confusion many courts, scholars, and members of the public have about modem rape law. Rubenfeld's specific proposal to base rape statutes on a right to self-possession, because it is derived from mistaken premises about rape law, would likely make legal over ninety percent of rapes in America. By replacing the non-consent element of modem rape statutes with a narrow force requirement, Rubenfeld's recommendation essentially decriminalizes non-stranger rape and rape by a victim's intoxication. In this Article, I examine the missteps Rubenfeld makes to explain why he ends up supporting such a disastrous conclusion. For example, Rubenfeld sees the need for his right to self-possession theory because he believes that autonomy is the sole basis that scholars offer for the foundation of rape law. However, rape is also properly supported as an independent offense by the nature and severity of harm caused, gender dynamics involved, and terror inflicted on the general population by widespread sexual violence. He also uses specious analogies and idiosyncratic conceptions of autonomy to establish the critical components of his argument. Despite the faults of his specific claims, Rubenfeld points rape scholars in a worthwhile direction. Instead of seeking diminishing returns with statutory tinkering, there is much to be gained by focusing on the foundations of rape law. By better integrating the fundamental values that warrant robust rape laws (autonomy, gender, harm, and terror), the major problems of high rape prevalence, law enforcement failure, and political hostility to rape victims that plague America can be better addressed. t Professor of Law, University of Kansas School of Law. I would like to thank Michelle J. Anderson, 1.
... 2) the instrumentalities of interstate commerce, or persons or things in interstate commerce... more ... 2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) activi-ties that substantially affect interstate commerce.14 In Morrison, the Court ... COREY RAYBURN YUNG ...
This Article calls into question the fundamental premises of models of judicial decisionmaking ut... more This Article calls into question the fundamental premises of models of judicial decisionmaking utilized by legal and political science scholars. In the place of the predominant theories, I offer a new approach to understanding judicial behavior which recognizes judicial heterogeneity, multidimensional behavior, and interconnectedness among judges at different levels within the judiciary. The study utilizes a unique dataset of over 30,000 judicial votes from eleven courts of appeals in 2008, yielding statistically independent measures for judicial activism, ideology, independence, and partisanship. Based upon those four metrics, statistical cluster analysis is used to identify nine statistically distinct judging styles: Trailblazing, Consensus Building, Stalwart, Regulating, Steadfast, Collegial, Incrementalist, Minimalist, and Error Correcting. These judicial style types offer a fuller account of judicial behavior than any of the prior models utilized by scholars.
During the last two decades, many police departments substantially undercounted reported rapes cr... more During the last two decades, many police departments substantially undercounted reported rapes creating "paper" reductions in crime. Media investigations in Baltimore, New Orleans, Philadelphia, and St. Louis found that police eliminated rape complaints from official counts because of cultural hostility to rape complaints and to create the illusion of success in fighting violent crime. The undercounting cities used three difficult-to-detect methods to remove rape complaints from official records: designating a complaint as "unfounded" with little or no investigation; classifying an incident as a lesser offense; and, failing to create a written report that a victim made a rape complaint. This study addresses how widespread the practice of undercounting rape is in police departments across the country. Because identifying fraudulent and incorrect data is essentially the task of distinguishing highly unusual data patterns, I apply a statistical outlier detection tec...
This is a casebook for a first-year criminal law course at American law schools. It covers statut... more This is a casebook for a first-year criminal law course at American law schools. It covers statutory interpretation, actus reus, mens rea, attempt, conspiracy, homicide, rape, and general affirmative defenses. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.
This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar... more This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar in a variety of disciplines. It covers the criminalization of sexual deviance, rape, sexual assault, obscenity, non-consensual pornography, child molestation, incest, child pornography, sex trafficking, sex work, prostitution, sex offender registration, sex offender residency restrictions, and sex offender civil commitment. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms. If you are interested in using this book in your class, please email me at [email protected] from your official school account and I can provide access to an editable Word version of the casebook and accompanying slides. At some point in the future, I hope to have an available teacher's manual as well.
The growing enactment of sex offender restrictions has been one of the most notable developments ... more The growing enactment of sex offender restrictions has been one of the most notable developments in criminal law in recent decades. Thus far, courts across the country have been relatively complacent in allowing legislatures to test the limits of various civil liberties. The Ex Post Facto Clause has been among the first constitutional victims of these new laws. Whereas the Clause was once construed as a substantive right protecting citizens against vindictive or arbitrary legislative actions often based upon the hysteria of the moment, it has become a hollow shell of its original form. Because courts have narrowly construed the purpose of the Clause to fair notice, the right underlying the Clause has ceased being substantive and become entirely process based. The result of this transformation is that the courts have provided a set of sure-fire legislative recipes for extremely punitive criminal statutes to survive challenges based upon the Ex Post Facto Clause.
Full-text available at SSRN. See link in this record.The emerging war on sex offenders, as typica... more Full-text available at SSRN. See link in this record.The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention. Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society
This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar... more This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar in a variety of disciplines. It covers the criminalization of sexual deviance, rape, sexual assault, obscenity, non-consensual pornography, child molestation, incest, child pornography, sex trafficking, sex work, prostitution, sex offender registration, sex offender residency restrictions, and sex offender civil commitment. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.
This is a casebook for a first-year criminal law course at American law schools. It covers statut... more This is a casebook for a first-year criminal law course at American law schools. It covers statutory interpretation, actus reus, mens rea, attempt, conspiracy, homicide, rape, and general affirmative defenses. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.
New Criminal Law Review: An International and Interdisciplinary Journal, 2018
The American criminal justice system regarding sex is not just logically incoherent, it is also o... more The American criminal justice system regarding sex is not just logically incoherent, it is also often morally bankrupt because it remains unexamined and poorly understood. This Article contends that there are actually common roots underlying the seemingly oppositional forces of social panic and denial, which explain why the United States has an endemic sexual violence problem. Both panic and denial reinforce the implicit, and sometimes explicit, desire to avoid substantive engagement with socially contentious issues related to sex. The use of residency restrictions and civil commitment fit the modern social goal of putting sex offenders out-of-sight and out-of-mind. Yet, those same desires also explain America’s unwillingness to believe victims of sexual violence and police failure to properly investigate criminal complaints. In this way, sex panic dovetails with sex denial—in both instances, American culture only permits a limited discussion and understanding of sex and sexual viol...
All the world's a stage, And the men and women merely players: They have their exits and their en... more All the world's a stage, And the men and women merely players: They have their exits and their entrances; And one [wo]man in [her] time plays many parts. 1 Jacques' observation in Shakespeare's As You Like It describes the typical rape and sexual assault trial in the United States. The complainant 2 plays many different characters throughout the course of the trial. Prewritten cultural scripts dictate her 3 lines. The setting is both the courtroom
The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantia... more The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society.
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