I really like the idea of Jotwell, see my previous post here. Here are two jotwell articles on criminal law that are worth considering. Both go far beyond doctrinal considerations and might interest those who work in a variety of areas.
Both reflect on criminal law initiatives which might initially appeal to many feminists. They push us to question the larger implications of measures designed to protect the vulnerable. In one, the measure might have uneven impact racially. In the other article, it is the piling up of measures aimed at a particular kind of crime which creates a new context and cultural phenomenon. If you click through to the reviews, there are links to SSRN for both articles.
The first review is of Corey Rayburn Yung, The Emerging Criminal War Against Sex Offenders (2009, forthcoming Harvard Civil Rights- Civil Liberties Law Review).
The reviewer, Prof. Angela P. Harris of Boalt Hall, says (but really, read her whole review – i found it so interesting I almost forgot to go and pick up the article she’s talking about!):
…. lot of criminal law and procedure scholarship is incredibly boring for this reason: It pretends that doctrinal craft and/or moral theory actually matter. The work that isn’t boring, however, situates criminal law and procedure in its cultural and political context; and the article I like a lot this month is an excellent example, providing a useful guide to an ongoing crisis in American law and culture.
The second piece is a review of Aviva Orenstein, Propensity or Stereotype?: A Misguided Evidence Experiment in Indian Country, 19 Cornell J. Law & Pub. Pol. 173 (2009). Prof. Myrna Raeder of Southwestern writes:
In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes,Orenstein has been influential in applying feminist jurisprudence to evidentiary issues, not only concerning topics that are associated with women’s issues such as rape and domestic violence, but also in contexts where the link is less obvious, such as apologies by doctors. Previously, she critiqued the use of propensity evidence in No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49 Hastings L.J. 663 (1998), suggesting such evidence violates feminist values and presenting alternative evidentiary solutions to strengthening the government’s case. Like her, I view myself as a feminist who is sympathetic to the plight of victims of rape and child abuse, while remaining sensitive to issues of fairness and constitutional rights of criminal defendants. Thus, I knew this article would analyze difficult questions such as whether stereotyping of Indians1 is encouraged by the propensity rules, and why these rules do not necessarily further feminist goals.