Digital Commons Network^™

Labor Contract Formation, Tenuous Torts, And The Realpolitik Of Justice Sotomayor On The 50th Anniversary Of The Steelworkers Trilogy: Granite Rock V. Teamsters, David L. Gregory

David L. Gregory

No abstract provided.

Classifying Admissions And Prior Statements: Alternatives To Rule 801(D)’S Confusing And Misguided Use Of The Term “Not Hearsay”, Sam Stonefield

Sam Stonefield

This article examines the treatment of admissions and prior statements in hearsay law generally and in Rule 801(d) of the Federal Rules of Evidence in particular. Nearly everyone agrees that Rule 801(d)’s classification of such statements as “not hearsay” is “awkward” and “wrong” (even “Orwellian”) and violates the norms of clarity and consistency expected of good drafting and the standards of the Guidelines for Drafting and Editing the Federal Rules. Yet the rule was drafted by a distinguished Advisory Committee, enacted by Congress, adopted by 34 states and has survived for over 35 years. How did this happen? What is …

Bargaining With Double Jeopardy, Saul Levmore, Ariel Porat

Saul Levmore

Virtually every legal system specifies a variety of burdens of proof for different kinds of claims, and then secures each specification with another, nominally unrelated rule pertaining to relitigation. In criminal law, where a prosecutor might be required to prove guilt beyond a reasonable doubt, the prosecutor is prevented from repeatedly drawing from the urn, as it were, by the familiar and nearly universal rule of double jeopardy. Nevertheless, this Article suggests that if law were to weaken the protection, or more likely to permit the defendant to waive the double jeopardy protection, both private and social benefits might follow. …

Can The American People, Through Their Legislature, Determine What Remedy Should Be Available For Fourth Amendment Violations?, Kevin R. Pettrey

Kevin R Pettrey

The United States Supreme Court, in Hudson and Herring, has opened the door to possible alternative Fourth Amendment remedies. Due to these recent cases, Congress and the states may have room to maneuver legislatively to create a remedy of another kind. This article proposes a statute to serve as an alternative remedy and supports the statute's constitutionality through a careful analysis of Supreme Court jurisprudence on the Fourth Amendment and related topics.

Teens, Technology, And Cyberstalking: The Domestic Violence Wave Of The Future?, Andrew J. King-Ries

Andrew J King-Ries

While the legal system has made progress in combating domestic violence in the last 30 years, this progress is threatened by the intersection of two recent developments: teenagers normalizing unhealthy relationship patterns through pervasive use of technology and law enforcement’s inability to adequately respond to cyberstalking. The combination of these trends suggests America is producing a new generation of domestic violence batterers.

Recent studies document extensive use of technology—email, texts, social networking—by teenagers in their intimate relationships. Teenagers’ use of technology in their dating relationships often mimics relationship patterns present in violent adult relationships. Teenagers appear to be normalizing unhealthy …

Impeding Reentry: Agency And Judicial Obstacles To Longer Halfway House Placements, S. David Mitchell

S. David Mitchell

Over 700,000 prisoners were released into their communities in 2008, at least 50,000 of those from federal custody. Once an obscure cause, nearly everyone agrees that prisoner reentry – the process by which former prisoners return to their community as free citizens – is of national importance. Absent adequate attention to transitional services, ex-offenders are often homeless, unemployed, and suffer from untreated substance abuse addictions. Accordingly, President Obama and his two predecessors have devoted considerable attention to the issue. Congress passed the Second Chance in 2007, amending two federal statutes, sections 3624(c) and 3621(b) and giving inmates a longer time …

Self Restraint And National Security, Nathan Alexander Sales

Nathan Alexander Sales

Why does the government sometimes tie its own hands in national security operations? This article identifies four instances in which officials believed that the applicable laws allowed them to conduct a particular military or intelligence operation but nevertheless declined to do so. For example, policymakers have barred counterterrorism interrogators from using any technique other than the fairly innocuous methods listed in the Army Field Manual. Before 9/11, officials rejected the CIA’s plans to use targeted killings against Osama bin Laden and other terrorist leaders. Judge advocates sometimes use policy considerations to restrict military strikes that would be lawful. And in …

“Classifying Admissions And Prior Statements: Alternatives To Rule 801(D)’S Confusing And Misguided “Not Hearsay” Terminology.”, Sam Stonefield

Sam Stonefield

Abstract: Classifying Admissions and Prior Statements: Alternatives to Rule 801(d)’s Confusing and Misguided Use of The Term “Not Hearsay”

This article examines the treatment of admissions and prior statements in hearsay law generally and in Rule 801(d) of the Federal Rules of Evidence in particular. Nearly everyone agrees that Rule 801(d)’s classification of such statements as “not hearsay” is “awkward” and “wrong” (even “Orwellian”) and violates the norms of clarity and consistency expected of good drafting and the standards of the Guidelines for Drafting and Editing the Federal Rules. Yet the rule was drafted by a distinguished Advisory Committee, enacted …

Trawling For Herring: Lessons In Doctrinal Borrowing And Convergence, Jennifer E. Laurin

Jennifer E. Laurin

The Supreme Court’s 2009 decision in Herring v. United States has prompted both criticism and puzzlement concerning the source, meaning, and implications of the new culpability-based framework that it announced for the Fourth Amendment exclusionary rule. This Article proposes that Herring may be better understood not solely by reference to the exclusionary rule precedents to which the majority opinion claims fidelity, but rather in the context of the important and largely unexamined influence that constitutional tort doctrine has had in shaping exclusionary rule jurisprudence. That influence has been driven by the interrelated processes of borrowing and convergence – the former, …

Due Process And Counterterrorism, Amos N. Guiora

Amos N. Guiora

In this article, I examine counterterrorism from the perspective of detention, interrogation and trial and in particular how these three are articulated and implemented. The broader question is whether the contemporary counterterrorism paradigm is based in due process or a legal (not necessarily lawful) regime that minimizes individual rights. That is, does civil, democratic society discard core principles in the face of an on-going, viable threat or are political rights and national security rights effectively balanced in order to protect both. Answering this question requires analyzing the interface between threats and rights; in particular, the extent to which society responds …

When The Emperor Has No Clothes: A Proposal For Defensive Summary Judgment In Criminal Cases, Carrie Leonetti

Carrie Leonetti

This Article addresses the problem that arises when the prosecution has pleaded criminal charges correctly on the basis of probable cause, but either its theory of the defendant’s guilt is based on a misunderstanding of the governing law or it lacks legally sufficient evidence to sustain the charges. It argues that, in this situation, trial courts should have the authority to grant summary judgment to the defense.

The Article discusses the rationales that underlay the creation of summary judgment in civil cases, surveys the existing mechanisms for summary disposition of criminal charges (pretrial motions to dismiss, preliminary hearings, and grand-jury …

Deal Or No Deal: Why Courts Should Allow Defendants To Present Evidence That They Rejected Favorable Plea Bargains, Colin Miller

Colin Miller

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions….” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence. This article addresses the question of whether courts can …

A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters

Timothy W Waters

This Article is a work of original research interrogating the relationship between international criminal law and post-conflict reconciliation. Much of international criminal law’s attraction rests on the authoritative narrative theory: the claim that law’s authoritative judgments create incontestable narratives, which form the foundation for reconciliation in divided societies. So what happens when there is no judgment? By turning scholarship’s attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for international law, international relations, diplomacy and political science. What can be …

The Failure Of Consent, Michal Buchhandler-Raphael

michal buchhandler-raphael

What is rape? What are the harms, risks and values that the criminal prohibition on rape attempts to promote? How should criminal law properly conceptualize the offense of rape? Does submission to sexual demands in light of threats to inflict non-physical harms, such as economic and professional harms including firing or demotion, constitute rape? Scholars have been grappling with these questions for several decades, attempting to better align society’s perceptions about the criminal regulation of sexual misconduct with the ever-evolving social perceptions about sexuality and gender norms. This Article argues that while rape law reform has accomplished significant changes in …

The Red And Blue Golden State: Why California’S Proposition 11 Will Not Produce More Competitive Elections, Anthony E. Chavez

Anthony E Chavez

No abstract provided.

When The Emperor Has No Clothes: A Proposal For Defensive Summary Judgment In Criminal Cases, Carrie Leonetti

Carrie Leonetti

This Article addresses the problem that arises when the prosecution has pleaded criminal charges correctly on the basis of probable cause, but either its theory of the defendant’s guilt is based on a misunderstanding of the governing law or it lacks legally sufficient evidence to sustain the charges. It argues that, in this situation, trial courts should have the authority to grant summary judgment to the defense.

The Article discusses the rationales that underlay the creation of summary judgment in civil cases, surveys the existing mechanisms for summary disposition of criminal charges (pretrial motions to dismiss, preliminary hearings, and grand-jury …

Analysis Of The 2010 Sec -- Dell Inc Accounting Fraud Settlement, Barrie Hansen Jd (Hons)

Barrie Hansen JD (Hons), LLM

Quis custodiet ipsos custodes? “Who shall guard the guards?” Juvenal, Satires The rule of law is dependent on public perception that there is consistency or parity in the application and enforcement of the law. The Securities and Exchange Commission (SEC) has recently been in sharp focus because of a perception that it has been ineffective in enforcing the law. The SEC should, as a matter of principle and public policy, be required to achieve a better result for injured parties than they would have otherwise achieved under the common law. Justice Mason of the High Court of Australia in Lowe …

Death And Texas: The Unevolved Model Of Decency, Patrick Metze

Patrick Metze

Professor Metze takes a critical look at Texas‟s substantive capital murder statute, Texas Penal Code § 19.03, the current state of the law, the available constitutional history of each paragraph, the Texas Legislature's expansive growth of death eligible crimes, and the Court of Criminal Appeals' complicity in this development, arguing that the statute has become violative of due process as unconstitutionally vague in its application, returning Texas capital jurisprudence to its genesis, exposing virtually all that commit murder in Texas to a system that once again has become arbitrary, capricious, and discriminatory in its application to minorities and in particular …

The Pedagogy Of Violence, Yxta M. Murray

Yxta M. Murray

In The Pedagogy of Violence, I develop a legal theory of the ways in which human beings teach each other to be violent. I am responding to the “contagion of violence” theory advocated by legal theorists such as Colin Loftin and Dr. Jeffrey Fagan, who argue that violence is akin to a contagious disease. Using disease as their paradigm, Loftin and Fagan contend that courts and political institutions should address the problem of violence through what they call the “epidemiological” approach; that is, they say that violence should be addressed as a public health problem. Though I do not take …

A “Supremer” Court?: How An Unfavorable Ruling In The Inter-American Commission On Human Rights Should Impact United States Domestic Violence Jurisprudence, Ethan G. Kate

Ethan G. Kate

After her substantive and procedural due process claims were dismissed in the Supreme Court, Jessica Gonzales took the unprecedented step of filing a claim with the Inter-American Commission of Human Rights, the first time such an allegation of human rights violations had been brought against the United States. Gonzales’ case has implicated two hot-button issues in modern United States jurisprudence: domestic violence prevention and the role of international law in domestic courts. Several scholars have looked at Gonzales’ case as it relates either to domestic violence or international law, but few have looked at the interplay between both issues. Specifically, …

Classifying Admissions And Prior Statements: Alternatives To Rule 801(D)’S Confusing And Misguided Use Of The Term “Not Hearsay”, Sam Stonefield

Sam Stonefield

Abstract: Classifying Admissions and Prior Statements: Alternatives to Rule 801(d)’s Confusing and Misguided Use of The Term “Not Hearsay”

This article examines the treatment of admissions and prior statements in hearsay law generally and in Rule 801(d) of the Federal Rules of Evidence in particular. Nearly everyone agrees that Rule 801(d)’s classification of such statements as “not hearsay” is “awkward” and “wrong” (even “Orwellian”) and violates the norms of clarity and consistency expected of good drafting and the standards of the Guidelines for Drafting and Editing the Federal Rules. Yet the rule was drafted by a distinguished Advisory Committee, enacted …

A “Supremer” Court?: How An Unfavorable Ruling In The Inter-American Commission On Human Rights Should Impact United States Domestic Violence Jurisprudence, Ethan G. Kate

Ethan G. Kate

After her substantive and procedural due process claims were dismissed in the Supreme Court, Jessica Gonzales took the unprecedented step of filing a claim with the Inter-American Commission of Human Rights, the first time such an allegation of human rights violations had been brought against the United States. Gonzales’ case has implicated two hot-button issues in modern United States jurisprudence: domestic violence prevention and the role of international law in domestic courts. Several scholars have looked at Gonzales’ case as it relates either to domestic violence or international law, but few have looked at the interplay between both issues. Specifically, …

When The Emperor Has No Clothes: A Proposal For Defensive Summary Judgment In Criminal Cases, Carrie Leonetti

Carrie Leonetti

This Article addresses the problem that arises when the prosecution has pleaded criminal charges correctly on the basis of probable cause, but either its theory of the defendant’s guilt is based on a misunderstanding of the governing law or it lacks legally sufficient evidence to sustain the charges. It argues that, in this situation, trial courts should have the authority to grant summary judgment to the defense.

The Article discusses the rationales that underlay the creation of summary judgment in civil cases, surveys the existing mechanisms for summary disposition of criminal charges (pretrial motions to dismiss, preliminary hearings, and grand-jury …

Breakdown In The Language Zone: The Prevalence Of Language Impairments Among Juvenile And Adult Offenders And Why It Matters, Michele M. Lavigne

Michele M LaVigne

For over eighty years, social scientists have known that poor language skills are closely associated with the constellation of emotional and behavioral disturbances routinely seen in juvenile and criminal court. These include conduct disorder, academic deficits, social incompetence, impulsivity, and even aggression. As we might expect, researchers have also found that language impairments are present at a high rate within juvenile and adult correctional institutions. So far however, the law has yet to acknowledge even the existence of this body of social science, let alone its significance for the administration of justice, rehabilitation, and public safety. This article is an …

Reverse Incorporation Of State Constitutional Law, Joseph Blocher

Joseph Blocher

State supreme courts and the United States Supreme Court are the independent and final arbiters of their respective constitutions, and may therefore take different approaches to analogous state and federal constitutional issues. Such issues arise often, because the documents were modeled on each other and share many of the same guarantees. In answering them, state courts have, as a matter of practice, generally adopted federal constitutional doctrine as their own. Federal courts, by contrast, have largely ignored state constitutional law when interpreting the federal constitution. In McDonald v. Chicago, to take only the most recent example, the Court declined to …

Facilitating Crimes, Kyle F. Graham

Kyle F Graham

Conventional wisdom holds that all crimes run a gauntlet of procedures that begins with an investigation and arrest, leads to charging and arraignment, and culminates (at least in successful prosecutions) with a conviction and the application of punishment. The reality is more nuanced; in fact, there exist “detention crimes,” “charging crimes,” and “pleading crimes,” three types of offenses that, as applied, tend to implicate only portions of this sequence. This article examines the three categories of “facilitating crimes” and the benefits and drawbacks associated with their use. On the one hand, these offenses may reflect the more sensitive criminalization of …

Dostoevsky V. The Judicial Reforms Of 1864: How And Why One Of 19th Century Russia’S Greatest Writers Mercilessly Criticized The Nation’S Most Successful Reform, Brian Sc Conlon

Brian SC Conlon

The legal reforms of 1864 marked a shift in Russian legal culture from an amorphous, corrupt, pre-modern system of procedure, structure and customary law to an independent, modern and westernized system as liberal as any nation of Europe or North America. These reforms were nearly universally lauded by legal and cultural critics, both at the time they were introduced and in historical accounts. Despite the apparent necessity and success of the new courts, one of the leading figures in 19th Century Russian literature (and indeed the history of world literature), Fyodor Mikhailovich Dostoevsky, continually criticized the new system in both …

When The Emperor Has No Clothes: A Proposal For Defensive Summary Judgment In Criminal Cases, Carrie Leonetti

Carrie Leonetti

This Article addresses the problem that arises when the prosecution has pleaded criminal charges correctly on the basis of probable cause, but either its theory of the defendant’s guilt is based on a misunderstanding of the governing law or it lacks legally sufficient evidence to sustain the charges. It argues that, in this situation, trial courts should have the authority to grant summary judgment to the defense.

The Article discusses the rationales that underlay the creation of summary judgment in civil cases, surveys the existing mechanisms for summary disposition of criminal charges (pretrial motions to dismiss, preliminary hearings, and grand-jury …

Utilizing Rule Based Bias Filtering To Standardize Reasonable Doubt And Ameliorate Cognitive Biases, Yali Corea-Levy

Yali Corea-Levy

The standard of “proof beyond a reasonable doubt” is meant to, at least in part, ensure that the government meets the highest practical standard of proof possible before imposing a criminal penalty on a person. This article argues that the standard, as currently applied in trial settings, does not succeed in being the vanguard of prudence and equity it was meant to be. Specifically, it falls short because of its vagueness coupled with our cognitive peculiarities, including our tendency to feel certain about facts more easily than we should. This article describes the problem and ultimately suggests a relatively simple …

The Postville Raid: A Postmortem, Robert R. Rigg

Robert R. Rigg

In 2008, the largest immigration raid to date took place in Postville, Iowa. The target of the raid was Agriprocessors Inc., where an estimated 75% of its 968 employees were in the country illegally. In addition to the deportation of those taken into custody, the decision was made to criminally prosecute the seized individuals en masse. This represented a departure from the selected and targeted criminal prosecutions of prior immigration raids. The raid was scheduled for Monday, May 12, 2008.

Immigration and Customs Enforcement (ICE), the United States Attorney’s Office for the Northern District of Iowa, the United States Department …