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Intentionalism's Revival, James J. Brudney
Intentionalism's Revival, James J. Brudney
San Diego Law Review
The Article situates BLMRod's article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod's use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the compression process that generated them. The essay explores certain implications of this thematic focus. It discusses how the authors' approach may help clarify the status of legislative history as evidence of ascribed or imputed intent. It also suggests how that approach may …
Introduction To The Third Criminal Procedure Discussion Forum, Russell L. Weaver
Introduction To The Third Criminal Procedure Discussion Forum, Russell L. Weaver
San Diego Law Review
The Third Criminal Procedure Discussion Forum was held at the University of Louisville's Brandeis School of Law on December 14, 2006. As with prior fora, the goal of this forum was to bring together a small group of prominent criminal procedure scholars to discuss matters of common interest. This year's forum focused on two topics: "confessions jurisprudence" and "the most underrated criminal procedure decision(s)."
Truth, Justice, And The American Dilemma, Robert Batey
Truth, Justice, And The American Dilemma, Robert Batey
San Diego Law Review
McCleskey v. Kemp is without doubt a memorable case. Professor David C. Baldus and his colleagues, Charles A. Pulaski and George Woodworth, had produced a detailed statistical study of the operation of the death penalty in Georgia showing, in the words of the Supreme Court, that "black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty." McCleskey used this study to challenge his capital sentence under both the Equal Protection and Cruel and Unusual Punishment Clauses. Like any statistical proof, the Baldus study had been challenged on methodological grounds. The Supreme Court …
Smith V. Hooey: Underrated But Unfulfilled, Leslie W. Abramson
Smith V. Hooey: Underrated But Unfulfilled, Leslie W. Abramson
San Diego Law Review
The Sixth Amendment right to a speedy trial applies to prosecutions in the federal courts and to state prosecutions through the Fourteenth Amendment Due Process Clause. This constitutional right is probably the least favorite of the Bill of Rights, because it would satisfy most defendants if the government never - promptly or otherwise - disposed of their pending charges. One group of persons, though, who may regard the right to a speedy trial as important are convicted defendants currently serving sentences, but who have pending charges brought against them by other states or the federal government. For them, denying the …
Interrogating Terrorists: From Miranda Warnings To "Enhanced Interrogation Techniques", Ronald J. Rychlak
Interrogating Terrorists: From Miranda Warnings To "Enhanced Interrogation Techniques", Ronald J. Rychlak
San Diego Law Review
An American citizen arrested within the United States would certainly have the right not to incriminate himself. A foreign national arrested outside of the U.S. would presumably not be protected. Other scenarios present more difficult issues. American courts, therefore, have to determine whether the Fifth Amendment's privilege against self-incrimination applies to non-American citizens, and whether an American police or military agent conducting an investigation abroad must provide some type of warnings before conducting an interrogation. The initial question would seem to be whether terrorist suspects are even entitled to the right protected by Miranda - the right not to incriminate …
International Criminal Jurisdiction In The Twenty First Century: Rediscovering United States V. Bowman, Ellen S. Podgor, Daniel M. Filler
International Criminal Jurisdiction In The Twenty First Century: Rediscovering United States V. Bowman, Ellen S. Podgor, Daniel M. Filler
San Diego Law Review
In Part I of this Article, we provide a description of the facts and holding of United States v. Bowman. In Part II, we describe the ways in which lower courts have interpreted this decision. We point to various cases citing Bowman and show how these courts give exceedingly broad application to the holding - far broader application than the opinion warrants. Finally, in Part III, we discuss the ways in which the courts should read Bowman and demonstrate how this more accurate reading of the Court's decision is consistent with the realities of twenty-first century global economies. In doing …
Toward A More Robust Right To Counsel Of Choice, Janet C. Hoeffel
Toward A More Robust Right To Counsel Of Choice, Janet C. Hoeffel
San Diego Law Review
This Article takes its lead from the core principles of the right to counsel of choice expressed in Gonzalez-Lopez. These principles indicate that the right should include an indigent defendant's right to continue an attorney-client relationship established at some point in the past, and that, for both nonindigent and indigent defendants, the right to continue a trial with counsel of choice must be honored by trial courts unless it would be unethical or manifestly unjust to do so. This means that trial courts must almost always grant a continuance to accommodate that choice and could rarely deny such a request …
Striking A Balance In Unlawfully Obtained Confession Cases: United Kingdom Pragmatism Against Principle, Jenny Mcewan
Striking A Balance In Unlawfully Obtained Confession Cases: United Kingdom Pragmatism Against Principle, Jenny Mcewan
San Diego Law Review
In Part I of this Article, we provide a description of the facts and holding of United States v. Bowman. In Part II, we describe the ways in which lower courts have interpreted this decision. We point to various cases citing Bowman and show how these courts give exceedingly broad application to the holding - broader application than the opinion warrants. Finally, in Part III, we discuss the ways in which the courts should read Bowman and demonstrate how this more accurate reading of the Court's decision is consistent with the realities of twenty-first century global economies. In doing so, …