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Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

The Name Is The Same, But The Facts Have Been Changed To Protect The Attorneys: Strickland, Judicial Discretion, And Appellate Decision-Making, Greg O'Meara,

Greg O'Meara,

The gap between historical events and the way courts recount them in appellate decisions is highlighted by the differences in fact descriptions offered in the same case: Strickland v. Washington. The Supreme Court’s majority decision ignores or recasts facts found in the lower courts in this case. Paul Ricoeur, the leading philosopher of narrative, provides a framework that explains how legal facts are malleable and subject to distortion in his work on non-fiction narratives. He lays out instabilities inherent in any use of language and then broadens his inquiry to show that the transition from the oral to the written …

Motivational Law, Arnold S. Rosenberg

Arnold S Rosenberg

This article introduces a new concept of law’s motivational functions and the laws that serve those functions, which I call “motivational law.” Motivational law consists of those rules and principles, a purpose or function of which is to motivate people to comply with laws that regulate their conduct toward each other or their environment. Motivational laws include obscenity and censorship laws, religious laws on diet, dress, liturgy and ritual, military disciplinary rules, “soft law,” the doctrine of consideration in contract law, and even procedural due process.

Drawing on cognitive dissonance theory and other behavioral research, I conclude that motivational law …

Confessing In The Human Voice: A Defense Of The Privilege Against Self-Incrimination, Andrew Taslitz

Andrew E. Taslitz

ABSTRACT OF CONFESSING IN THE HUMAN VOICE: A DEFENSE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

By Andrew E. Taslitz

The privilege against self-incrimination has fallen on hard times. Miranda rights shrink, as do those more traditional “core” aspects of the privilege. Partly this is due to an implicit skepticism by the courts about the value of the privilege, despite their occasional explicit words of praise for its role in our constitutional scheme. Scholars largely, though not uniformly, agree that the privilege cannot be justified as a philosophical matter, viewing it as an unfortunate burden we are stuck with because of its …

Where Lies The Emperor's Robe? An Inquiry Into The Problem Of Judicial Legitimacy, Gregory C. Pingree

Gregory C. Pingree

Gregory C. Pingree Article Abstract

Where Lies the Emperor’s Robe?

An Inquiry Into The Problem of Judicial Legitimacy

Today the American judiciary is, by any reasonable assessment, under attack. In politicians’ pious calls for religious retribution in response to controversial judicial decisions (e.g., in the Terri Schiavo case); in recent state ballot initiatives calling for “Jail-4 Judges” who don’t render decisions ideologically satisfactory to some groups; in the embattled and nearly intractable confirmation process for federal judges; and certainly in the wake of Bush v. Gore, which left many Americans convinced that the judiciary is not the impartial branch it …

But Did They Listen?, Robert Blecker

robert blecker

BUT DID THEY LISTEN? Instructed by the state legislature to consider all aspects of the death penalty, invited to propose appropriate legislation, the New Jersey Death Penalty Study Commission’s final report nearly unanimously urges abolition with life without parole as a substitute. Apparently unbiased in its approach and thorough in its deliberation, the Commission’s final report distorts the evidence, shows a consistent anti-retributive bias, and worst of all, ignores basic well-established perspectives framing the great debate.

'The Moral Limits Of Criminalizing Remote Harms,' 10(3) New Criminal Law Review 370, Dr. Dennis J. Baker

Dr. Dennis J Baker

I draw on accessorial liability jurisprudence in an attempt to outline the moral limits of criminalizing people for merely influencing the criminal choices of others. A person's conduct is a remote harm when it is harmless but for the fact that it encourages another independent party to commit a harmful criminal act (a primary harm). For example, the broken windows thesis holds that minor incivilities (such as passive begging) are a precursor to more serious crime. Passive begging allegedly sends a signal to criminals that the broken windows area is unpoliced and is an easy target for crime. The beggars …

"Drug Treatment Courts In The 21st Century: Improving The Criminal Justice System's Response To Drug Offenses", Peggy Fulton Hora, Theodore Stalcup

Peggy Hora

The article demonstrates that the traditional criminal justice system’s response to drug offenses – arrest, trial and incarceration and re-arrest, re-trial and re-incarceration of 70% of offenders within three years – wastes vast economic and human resources. Drug treatment courts, on the other hand, have proven to be strong alternatives to incarceration as well as effective mechanisms for dealing with America’s drug problem. The article addresses criticism of drug treatment courts, including resistance to the disease model of addiction, disputes over efficacy of treatment, legal issues related to purported coercion of treatment, concern over unbridled judicial discretion and ethical issues …

Judicial Preference, Eric J. Miller

Annette Jett

No abstract provided.

The Fault(S) In Negligence Law, Alan Calnan

Alan Calnan

ABSTRACT According to conventional wisdom, negligence is a unique tort. It is different from strict liability because it is based on fault. Although it shares fault with intentional torts, negligence’s version of fault is different because it arises from the objective standard of reasonableness. This orthodox view has existed for nearly a century and has never been challenged. Even today, no one questions the strength of tort law’s theoretical superstructure or the truth of the assumptions upon which it is based. In fact, the American Law Institute, which currently is in the process of restating tort law’s basic principles, has …