Digital Commons Network^™

Admissibility Of Scientific Evidence Under Daubert: The Fatal Flaws Of ‘Falsifiability’ And ‘Falsification’, Barbara P. Billauer Esq

barbara p billauer esq

Abstract: The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or ‘bad’ science from infiltrating the courtroom. To do so, the Judges must first determine what “science” is? And then, what ‘good science’ is? It is submitted that Daubert is seriously polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This inapt philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis. Among other problems, is the intolerance of Popper’s system for multiple causation, a key component of toxic- torts. Thus, the primary …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Dangerous Tongues: Storytelling In Congressional Testimony, Clare Keefe Coleman

Clare Keefe Coleman

The important and dangerous use of storytelling in making legislation has been largely ignored by legal academics. Although notable scholars, including Justice Scalia and Cass Sunstein, have written extensively about the use of legislative history in statutory interpretation, and much has been written about the use of storytelling in advocacy, the important role that stories play in making legislation has been overlooked by the legal academy, outside of a few articles relating to criminal statutes. The Congressional Record on a recent farm bill is full of stories told by special interests that draw on metaphors, archetypes, and myths. Snow White’s …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

0n Executing Treatment-Resistant Schizophrenics: Identity And The Construction Of “Synthetic” Competency, Theodore Y. Blumoff

Theodore Y. Blumoff

Since 2003, death penalty jurisdictions have been permitted to use psychotropic drugs to “restore” the competency of schizophrenics so they can execute them. Exactly why it is permissible to execute a “synthetically” or “artificially” competent individual is unclear in light of Ford v. Wainwright, a 1986 decision in which the United States Supreme Court, following ancient custom and common law rule, held that the cruel and unusual prohibition of the Eighth Amendment prohibited execution of the insane. The lack of clarity follows from the inability of the Court to agree on the reason the tradition persists. Nonetheless, health care providers …

Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. Terbeek

Calvin J TerBeek

Ian Haney Lopez’s new book, "Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class", has a provocative thesis. Lopez contends that dog-whistling, that is, coded racial rhetoric, “explains how politicians backed by concentrated wealth manipulate racial appeals to win elections and also to win support for regressive policies that help corporations and the super-rich, and in the process wreck the middle class." Though this may seem plausible enough, the thesis cannot stand up to scrutiny; the relevant political science literature provides no support for this. What is more, Lopez's treatment of the Supreme Court's …

Taking Another Look At Second-Look Sentencing, Meghan J. Ryan

Meghan J. Ryan

An unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, a bill recently introduced in Congress would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been …

The Rules Of Engagement, David D. Butler

David D. Butler

First impressions are the eye of the needle through which all subsequent threads are drawn. Zealous advocates take conrol of the Courtroom even before the prosecution is through the door. Get to the Courtroom first. Secure the table and chairs closer to the jury. Pick up all the chalk by the black board. When the befuddled county attorney is looking for a piece of chalk, hand him or her a nice new piece from the box you have in your attache case. Zealous advocates get to the Courtroom fiirst, with the most. Often, a zealous advocate can lift his or …

Nigger Manifesto: Ideological And Intellectual Discrimination Inside The Academy, Ellis Washington

Ellis Washington

Draft – 22 March 2014

Nigger Manifesto

Ideological Racism inside the American Academy

By Ellis Washington, J.D.

Abstract

I was born for War. For over 30 years I have worked indefatigably, I have labored assiduously to build a relevant resume; a unique curriculum vitae as an iconoclastic law scholar zealous for natural law, natural rights, and the original intent of the constitutional Framers—a Black conservative intellectual born in the ghettos of Detroit, abandoned by his father at 18 months, who came of age during the Detroit Race Riots of 1967… an American original. My task, to expressly transcend the ubiquitous …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

Justice Sotomayor's Undemocratic Dissent In Schuette V. Coalition To Defend Affirmative Action, Adam Lamparello

Adam Lamparello

There are compelling reasons to support affirmative action programs. The effects of racial discrimination, and racism itself, remain prevalent throughout the country. Pretending otherwise would be to ignore reality. Arguing that the equal protection clause compels a state to implement race-based affirmative action programs, however, would make a mockery of the Constitution. Former Supreme Court Justice Hughes famously stated, “at the constitutional level where we work, 90 percent of any decision is emotional.” The remaining 10 percent is “[t]he rational part … [that] supplies the reasons for supporting our predilections.” It is time for this type of judging to end. …

Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson

Jeffery L Johnson

Lawyers should be much more concerned with the concepts of truth and evidence. The entire profession depends on truth. It is what police detectives, District Attorneys, juries, trial judges, appellate judges, and academic lawyers offering interpretive theories, are all concerned with. But, since truth is seldom apparent on its sleeve, these legal actors are equally dependent on evidence as the only(?) reliable(?) means of determining truth. I defend a commonsensical theory of [good] evidence. I argue that this view, inference to the best explanation, captures most, if not all, of a lawyer’s appeal to evidence. It is far from clear, …

Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff

Theodore Y. Blumoff

Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge, …

The Prisoner's Dilemma And The Coase Theorem, F.E. Guerra-Pujol

F.E. Guerra-Pujol

Two of the most important ideas in economics and law are the “Coase Theorem” and the “Prisoner’s Dilemma.” In this paper, we explore the relation between these two influential models through a creative thought-experiment. Specifically, we present a pure Coasean version of the Prisoner’s Dilemma, one in which property rights are well-defined and transactions costs are zero (i.e. the prisoners are allowed to openly communicate and bargain with each other), in order to test the truth value of the Coase Theorem. In addition, we explore what effect (a) uncertainty, (b) exponential discounting, (c) and elasticity have on the behavior of …

Kaleidoscopic Chaos: Understanding The Circuit Courts’ Various Interpretations Of § 2255’S Savings Clause, Jennifer L. Case

Jennifer L. Case

More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time—and with increasing frequency—the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.

In their attempts to understand the …

The Separate But Unequal Constitution, Adam Lamparello, Charles E. Maclean

Adam Lamparello

The Constitution should not be a political chess match, and outcomes should not depend on the composition of the Supreme Court. The text’s written and unwritten mandates speak to a single value that should unite jurists of all interpretive persuasions: the people — not legislatures or courts — own the Constitution’s enumerated rights, and have a corresponding right to define those that are not enumerated. But those rights have not been fully realized because the Constitution has been applied in a separate — and unequal — manner.

The wealthy have increased access to the political process, the poor are disproportionately …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

Gandhi’S Nightmare: Bhopal And The Need For A Mindful Jurisprudence, Nehal A. Patel

Nehal A. Patel

No abstract provided.

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

U.S. Institutionalized Torture With Impunity: Examining Rape And Sexual Abuse In Custody Through The Icty Jurisprudence, Allison Rogne

Allison Rogne

It is a well-established principle, both domestically and internationally, that rape is torture when suffered as part of confinement. It is also well documented, both domestically and internationally, that rape is rampant in U.S. prisons. And it is well established, both domestically and internationally, that those who torture should not do so with impunity, that that impunity is an affront to civilization and the human rights principles to which we all strive. And yet, in U.S. prisons, shocking numbers of women are systematically raped and sexually abused by those that would rehabilitate them. Female prisoners are victims of vaginal and …

Snopa And The Ppa: Do You Know What It Means For You? If Snopa (Social Networking Online Protection Act) Or Ppa (Password Protection Act) Do Not Pass, The Snooping Could Cause You Trouble, Angela Goodrum

Angela Goodrum

No abstract provided.

The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman

Brett A Bauman

Police deception tactics are utilized throughout the United States as a way to catch unsuspecting criminals. Although criticized in many respects, most deceptive police techniques are not only legal, but are actually encouraged. DNA collection and analysis is no exception—techniques are frequently used by law enforcement officers in an attempt to collect a suspect’s genetic specimen in the interest of solving crimes. While law enforcement officers typically have the best interests of society in mind, the current practices employed by officers to collect suspects’ DNA violate the Fourth Amendment. The Fourth Amendment provides protection against unreasonable searches and seizures, and …

Punishment And Rights, Benjamin L. Apt

Benjamin L. Apt

Prevalent theories of criminal punishment lack a rationale for the precise duration and nature of state-ordered criminal punishment. In practice, too, criminal penalization suffers from inadequate evidence of punitive efficacy. These deficiencies, in theory and in fact, would not be so grave were the state to enjoy unfettered power over the disposition of criminal penalties. However, in societies that recognize legal rights, criminal punishments must be consistent with rights. Efficacy, even where demonstrable, does not suffice as a legal justification for punishment. This article analyzes the source of rights and how they function as primary rules in a legal system. …

Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Cover

Avidan Cover

Court opinions in the terrorism context are often distinguished by fact finding that relates to risk assessment. These risk assessments‑inherently policy decisions‑are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result courts apt to defer to the government and require less evidence in support of measures that curtail civil liberties. This Article takes …

Jurisprudence, Interpretation, And Relevance: How Relevant Is Jurisprudence In Modern Practice?, David C. Bell

David C Bell

Jurisprudence and statutory interpretation are distained by law school students and in legal circles outside the academic realm, but both are an integral part of the legal process and as such should be included in all law school education in an effort to turn out practice ready lawyers. This paper will look at the different theories of statutory interpretation, breaking down how the individual theories go about interpretation. The different theories to be analyzed include hermeneutics, textualism, purposive interpretation, dynamic interpretation, liberal interpretation, legal process theory, moral theory, and active liberty. Then the paper will analyze parallels between the interpretation …

Defying Gravity: The Development Of Standards By States In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Matthew H Charity

The number of nations that have signed and ratified the Rome Treaty of the International Criminal Court continues to expand, but the number of cases prosecuted remains fairly small. One issue that defies resolution is the place of complementarity in the post-conflict jurisdictional decisions of the I.C.C. and national tribunals. Although the Rome Statute crystallizes definitions of core international crimes, the interpretation of processes leaving jurisdiction with the nation or allowing jurisdiction to the I.C.C. continues to lack structure.

One step that some states have taken in implementing legislation and processes in support of jurisdiction over I.C.C. core crimes is …

Death And Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not—that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death …