Cornell Law Review Online Publishes Response and Reply to Luna and Fairfield article “Digital Innocence”
In September 2014 Washington and Lee law professors Erik Luna and Joshua Fairfield published an article entitled “Digital Innocence” in the Cornell Law Review, Vol. 99, Issue 5. Cornell Law Review Online has now published two responses to the article and a reply from Professors Luna and Fairfield.
Find the full text of the article, responses and reply below:
“Digital Innocence” by Erik Luna and Joshua Fairfield
“Big Data and Due Process”, a response by Brandon Garrett, University of Virginia School of Law
“Collection Anxiety”, a response by Jane Bambauer, University of Arizona College of Law
“The Open Society and Its Digital Enemies: A Reply to Professors Bambauer and Garrett“, a reply by Erik Luna and Joshua Fairfield
Washington and Lee law professor Erik Luna has published an article in the inaugural edition of the Stanford Journal of Criminal Law & Policy. The article is entitled “Prosecutor King.”
From the abstract:
Professor Luna examines prosecutorial discretion through the lens of the Republic, analogizing Plato’s model city to American criminal justice. Like the city’s ideal rulers, prosecutors reign supreme through their discretionary decisionmaking, which includes not only the power to enforce the law but also the effective authority to adjudicate cases and set the scope of criminal law. Comparative analysis reveals that American prosecutors are not platonic, however, and an anti-totalitarian critique of the Republic helps demonstrate the danger of unchecked prosecutorial power.
The full article is available here.
From the abstract:
Recent revelations have shown that almost all online activity and increasing amounts of offline activity are tracked using Big Data and data mining technologies. The ensuing debate has largely failed to consider an important consequence of mass surveillance: the obligation to provide access to information that might exonerate a criminal defendant. Although information technology can establish innocence—an ability that will only improve with technological advance—the fruits of mass surveillance have been used almost exclusively to convict. To address the imbalance and inform public dialogue, this Article develops the concept of “digital innocence” as a means of leveraging the tools of Big Data, data mining, ubiquitous consumer tracking, and digital forensics to prevent wrongful convictions and to provide hard proof of actual innocence for those already convicted.
Download the full article here.
Washington and Lee Law Professor Erik Luna recently presented his forthcoming work, Prosecutor King, at the Symposium on Prosecutorial Discretion. The Symposium was held on May 16, 2014 at Stanford Law School and hosted by the Stanford Journal of Criminal Law & Policy. Professor Luna’s work will be published in the journal’s inaugural edition.
The discussion and fellowship were very stimulating, bringing together scholars from around the world to discuss the German Free Law Movement and Hermann Kantorowicz’s work The Battle for Legal Science. The presentations were at an extremely high level and very enlightening. W&L’s own Erik Luna participated in a panel discussing the legacy of free law, which Visiting W&L law professor Trey Childress moderated. Russ Miller’s presentation in another panel on free law in German Jurisprudence was truly fascinating, as we each learned how the German Constitutional Court might arguably be implementing some of the free law approach in its own work.
Professor Erik Luna, Professor of Law and Law Alumni Faculty Fellow, recently published his book, The Prosecutor in Transnational Perspective (Oxford University Press 2011), with Marianne Wade of the Birmingham Law School at the University of Birmingham.
The book, a compilation of works and essays, discusses the powerful role the American prosecutor plays in the judicial system. They wield the authority to accept or decline a case, choose which crimes to allege, and decide the number of counts to charge. These choices, among others, are often made with little supervision or institutional oversight. This prosecutorial discretion has prompted scholars to look to the role of prosecutors in Europe for insight on how to reform the American system of justice.
In The Prosecutor in Transnational Perspective, Professor Luna and Marianne Wade, through the works of their contributors coupled with their own analysis, demonstrate that valuable lessons can be learned from a transnational examination of prosecutorial authority. They examine both parallels and distinctions in the processes available to and decisions made by prosecutors in the United States and Europe. Ultimately, they demonstrate how the enhanced role of the prosecutor represents a crossroads for criminal justice with weighty legal and socio-economic consequences.
The book may be found on Amazon here.
Professor John D. King, Associate Clinical Professor, recently had his paper, “Procedural Justice, Collateral Consequences, and the Adjudication of Misdemeanors” published in The Prosecutor in Transnational Perspective, edited by Erik Luna and Marianne Wade (Oxford University Press 2011).
Scholarly analysis and popular perceptions of the American criminal justice system tend to focus on serious crimes. The majority of Americans, however, will interact with the criminal justice system (if at all) in a misdemeanor courtroom, in which dozens of defendants wait for hours to spend a few moments in front of a judge. Many of them will not be represented by a lawyer and very few of them will have a single piece of paper filed on their behalf. Individually, their cases might command the scrutiny of a police officer for a couple of hours, a prosecutor for a couple of minutes, and a judge for a couple of moments. With a few notable exceptions, the process by which we prosecute and adjudicate low-level cases in the American criminal justice system has gone largely unexplored and unexamined, despite its being the primary contact that most Americans have with the criminal justice system.
In his essay, Prof. King addresses some of the issues surrounding the prosecution and adjudication of low-level offenses in the United States, looking specifically at the changed context within which such prosecutions take place today. He explores the tension between the formal procedural safeguards and adversarial zeal that is supposed to characterize the American criminal justice system, and the practice of the processing of misdemeanor cases as it actually occurs in courtrooms across the country. Prof. King also examines the recent explosion of the scope and number of collateral consequences that attend a criminal conviction, including many misdemeanor convictions. He addresses the issue of wrongful convictions, an issue that has received great focus recently in the context of serious cases but much less so with regard to the low-level prosecutions that dominate the criminal justice system. Finally, Professor King argues that the dramatic increase in misdemeanor prosecutions as well as the sharp rise in the seriousness and scope of the resulting collateral consequences requires a change in how such cases are adjudicated.
The article can be found on SSRN here.