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Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora
Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora
ExpressO
The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”
No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …
Picking Up The Pieces Of The Gordian Knot: Towards A Sensible Merger Methodology, Bruce A. Antkowiak
Picking Up The Pieces Of The Gordian Knot: Towards A Sensible Merger Methodology, Bruce A. Antkowiak
ExpressO
This question of merger is one of the most perplexing that courts face in the criminal sentencing process. This article not only explores that question but proposes specific new methods a court may use to resolve this question in a way consonant with the Constitution and the intent of the legislature.
The article takes as its starting point a brilliant analysis of the Double Jeopardy doctrine set out by Professor Ann Poulin of Villanova Law School in an article entitled Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595 (2006). Professor Poulin’s work demonstrates …
Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults
Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults
ExpressO
The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.
Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila
Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila
ExpressO
This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.
The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …
American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson
American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson
ExpressO
Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …
Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy
Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy
ExpressO
After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …
The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann
The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann
ExpressO
This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.
Review Essay: Using All Available Information, Max Huffman
Review Essay: Using All Available Information, Max Huffman
ExpressO
This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …
The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh
The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh
ExpressO
In the article, I discuss the potential use of public opinion polls to measure the discriminatory effect of certain questions in jury selection. While the laws surrounding race and gender based jury selection are known to most lawyers, there has been little scrutiny on questions that might be posed to potential jurors that are facially neutral, yet have a discriminatory impact. This article examines a number of such questions and offers a statistical test to determine whether a proposed question has, in fact, a 98% certainty of having a discriminatory effect if relied upon in jury selection.
Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato
Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato
ExpressO
Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …
Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil
ExpressO
Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …
Book Review: Forensic Linguistics, Dru Stevenson
Book Review: Forensic Linguistics, Dru Stevenson
ExpressO
Review of John Gibbons' text "Forensic Linguistics"
Jury Trials In Japan, Robert M. Bloom
Jury Trials In Japan, Robert M. Bloom
ExpressO
The Japanese are seeking to involve their citizens in the judicial system. They are also establishing a check on the power of the judiciary. Towards these goals, they have enacted legislation to create jury trials. These remarkable ambitions envision adopting a mixed-jury system, slated to take effect in 2009. In this mixed-jury system, judges and citizens participate together in the jury deliberation.
This article first explores the differences between mixed-juries and the American jury system. It then suggests why the Japanese opted for a mixed-jury system. The article explores psychological theories surrounding collective judgment and how dominant individuals influence group …
A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs
A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs
ExpressO
Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended …
'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami
'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami
ExpressO
In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.
I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …
The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley
The Dilution Effect: Federalization, Fair Cross-Sections, And The Concept Of Community, Laura G. Dooley
ExpressO
The question of the relevant community from which a fair cross-section of jurors should be drawn has received little theoretical attention. This article seeks to fill that gap by using communitarian and postmodern theory to give content to the idea of "community" in the fair cross-section context. This analysis is timely and has grave practical importance, given that the federal government is increasingly assuming the prosecution of crime previously dealt with at the state level. This "federalization" of criminal enforcement has the second-order effect of changing the "community" from which criminal juries will be drawn, particularly in urban areas surrounded …
Judicial Perspectives On The Federal Sentencing Guidelines And The Goals Of Sentencing: Debunking The Myths, Michael E. O'Neill
Judicial Perspectives On The Federal Sentencing Guidelines And The Goals Of Sentencing: Debunking The Myths, Michael E. O'Neill
ExpressO
No abstract provided.