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Thursday, January 21, 2016

A Criminal Law class-materials request

Consulting the blawg-oracle:  I'm doing something new (for me!) in my first-year Criminal Law course, and I would welcome very much some help.  I made some cuts in my usual coverage, and freed up three classes (75 mins each) for what I'm describing as "special" or "current debates" topics.  I was thinking of (1) the "mass incarceration" phenomenon; relatedly (2) the "overcriminalization" debate; and (3) policing.  As we all know, each of these topics could take up an entire course (and more) and I'm proposing to put together simply a 30-pages or so handout for each, for the purpose of just one in-class discussion (although, of course, these topics come up, in other contexts, throughout the semester).
Take it away!  Revise my syllabus!

Posted by Rick Garnett on January 21, 2016 at 12:30 PM in Criminal Law, Rick Garnett | Permalink


Nothing more important than this, Rick:


Posted by: Marty Lederman | Jan 25, 2016 9:27:11 PM

I haven't looked at the case very closely, but was fairly persuaded by the SG's case for why it's not an appropriate case for original jurisdiction (assuming his account of the precedents is correct--again, nothing I've studied closely).

As for the merits, I must confess that I've never understood how Colorado's law might be "preempted." N&O, for example, acknowledge that federal law does not "require[] Colorado to criminalize marijuana.” Ibid. They argue, instead, that Colorado law is preempted because “Colorado’s affirmative authorization of the manufacture, possession, and distribution of marijuana presents a substantial obstacle to Congress’s objectives under the CSA.” They don't say what this means, and I don't understand what "affirmative authorization" can mean here *other than* that Colorado will not prohibit marijuana possession, etc., if certain criteria are satisfied. All that is "authorized," in other words, is an exemption from state criminal law.

Posted by: Marty Lederman | Jan 25, 2016 12:14:04 PM

Thanks for fixing my typo, Marty, and all those blocky states without coast lines all look the same to me anyway. 😉

And since I have your attention, do you have a prediction as to whether the Justices want to take this up now? Oklahoma has me convinced that they should at least consider this matter on the merits, but the ghost of Bickel might sensibly haunt the Justices into think this matter merits exhibiting some,passive virtues.

Your thoughts?

Posted by: Doug Berman | Jan 25, 2016 11:10:53 AM

"Nebraska and Colorado have now brought an original action to SCOTUS complaining about what Colorado is doing." That would be something! Doug means, of course, that Nebraska and Oklahoma are challenging Colorado's marijuana law. The Justices discussed it at conference last week -- they might decide what to do with it when they return in late February.

Posted by: Marty Lederman | Jan 25, 2016 10:58:03 AM

How about a class on state-level marijuana reform along with continued marijuana prohibition at the federal level. The 2001 SCOTUS ruling in Oakland Cannabis Club is a great real-world case dealing with necessity doctrines, and Raich can get you into federal power. And, of course, Nebraska and Colorado have now brought an original action to SCOTUS complaining about what Colorado is doing.

Posted by: Doug Berman | Jan 25, 2016 10:11:53 AM

Following Breyer's dissent in Glossip on the constitutionality of the death penalty, why not a class on the constitutionality of the death penalty and the Court's (potential) move to abolition? Rob Smith (UNC) has some great stuff on Slate on this topic, including an article on the Pope and the death penalty, which might be of interest given your institution.

Posted by: Sally | Jan 21, 2016 10:31:00 PM

I have found this article works pretty well as an accessible general intro to the "mass incarceration" discussion:

If you want more focused readings, Daedalus did a special issue on "mass incarceration" a few years ago that features some useful articles from a range of scholarly perspectives (often condensed versions of ideas presented at greater length elsewhere, thus useful for teaching):

Posted by: Sara Mayeux | Jan 21, 2016 4:16:27 PM

If you're doing mass incarceration, you could start with "Mass Incarceration: An Annotated Bibliography," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2670236

Also, since these are kind of "bonus" classes, I wonder if you've considered having guest speakers for them, for example a practicing prosecutor and defense attorney, or perhaps a judge, to offer their take.

Posted by: milbarge | Jan 21, 2016 3:50:04 PM

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