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Trolling Research Papers – February 2012

February 13, 2012

1. History, 2. Law, 7. Post-Trial

Trolling Research Papers – February 2012

Back to the Social Science Research Network …

Remember the movie Green Card?  I recalled it yesterday because I got the baseline facts on a new case – a simple divorce following kinda-sorta-not-sure-I-need-to-get-into-this-aspect-to-get-a-decree-but-it-could-be-interesting a marriage rooted in trying to get citizenship.  The dude, I guess, didn’t fit into America, and he’s back to his home country, complete with a “And don’t come back for ten years” ICE Order.

So then I find this paper on Marriage Fraud.  It makes a great point.  It’s not just citizenship but all sorts of rights that flow to people merely because they’re married.  Those rights encourage marriage for reasons other than love (that’s why people get married right?).

Here’s the abstract:  This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in the twentieth century, a massive expansion of public benefits tied to marriage prompted new marriage fraud doctrines to develop in various areas of the law, shifting the concept of the injured party from the defrauded spouse to the public at large. It proposes a framework for understanding these new doctrines by demonstrating that courts apply different tests for finding fraud depending on the value of the benefit sought compared to the cost to the individual of using marriage to obtain it. Furthermore, the Article argues that marriage is an ineffective means for distributing public benefits that serve specific objectives; in other words, marriage is being asked to do too much work. As a possible response to this problem, the Article concludes that lawmakers could disaggregate the components of marriage to which they attach public benefits. This would improve the efficacy of public benefits distribution without entirely dismantling the institution of marriage or jeopardizing the stability that it may provide to society.

Next.  So, I’m working this appeal that has me looking in all sorts of places for solid ground.  The latest angle is that the victim would have died regardless of being dumped two miles away on a remote road.  Don’t laugh – this is serious.  Follow me here.  Murder 2 in Pennsylvania is the Felony-Murder Rule – commit an enumerated felony, someone dies as a consequence of that felony, you bought Murder 2.  Kidnapping is one of the eligible felonies.  I got some research on another computer about the history of Felony-Murder.  The upshot is that word consequence.  We offed a defense that the consequence had to be intended.  Unintended consequences of the felony stamp your ticket.  Then we offed (in Pennsylvania) unforeseeable consequences.  Bottom line – any consequences of an enumerated felony, including those consequences that are unintended and unforeseeable, make the defendant eligible for Murder 2.

Where does that take us?  Back to this stark-naked word consequences.  If the death was inevitable regardless of the Kidnapping, then the death was not a consequence of the enumerated felony.  I need to review the autopsy …

What does a paper entitled Federal Mens Rea Interpretation and the Limits of Culpability’s Relevance have to do with the above?  We’ve gotta encircle the issue before we march in.  To do otherwise opens the door to narrow analyses.  This article caught my eye because Felony-Murder papers I’ve read talk about both transferred intent and strict liability.

Here’s the abstract:  This article examines recent trends in judicial interpretation of mens rea requirements in federal crimes. Strict liability as to some elements of offenses is widespread, and sometimes non-controversial. Yet courts lack reliable interpretive practices to determine which elements do not carry mens rea requirements in accord both with congressional intent and criminal law’s normative commitments to culpability as a prerequisite for punishment In a survey of recent federal court decisions, I identify two competing understandings of the culpability required to justify criminal punishment, especially with regard to distinctions in punishment between less and more serious wrongdoing.   One approach in the case law, endorsed recently by the U.S. Supreme Court, follows a principle of proportionate culpability. This principle holds that punishment should be in proportion to an actor’s fault, and it leads to interpretative decisions by courts that attach mens rea requirements to every normatively significant element of an offense. This principle is sometimes (but inconsistently) endorsed by courts, and it has stronger support among scholars (as well as the Model Penal Code). Yet in many instances federal courts’ decisions that specify mens rea requirements in serious federal offenses do not adhere to this view. A contrasting principle, threshold culpability, describes the dominant mode of mens rea interpretation in federal courts. On this view, mens rea is needed only to distinguish whether an actor is innocent or blameworthy; culpability merely defines eligibility for punishment and plays no necessary role in setting the magnitude of punishment. Under this principle, mens rea need not attach to every element of a crime, even elements that trigger substantial sentence increases. The article suggests reasons for the non-instrumental normative appeal of this latter view, and that appeal helps explain courts’ (and Congress’s) indecision among which of these two culpability principles should presumptively characterize federal criminal law. It also describes some costs of this indecision. Conflicting views about the role of culpability complicate courts’ choices among and use of statutory interpretation rules for mental state requirements in federal offenses, leading to inconsistent and unpredictable decision-making among courts and among offenses.

That’s enough for now.  Enjoy …

PS – Want some more?  CrimProf Blog lists the top ten downloads from the Criminal Law & Procedure journals.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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