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Does Judicial Philosophy Matter? A Case Study, Francisco J. Benzoni

Francisco J Benzoni

A leading theory in the study of judicial behavior is the attitudinal model. This theory maintains that a judge’s political ideology can be used to predict how a judge will decide certain cases, and other factors, such as the judge’s judicial philosophy, tend to be unimportant. Under this theory, the two judges with the same political ideology, but different judicial philosophies, should virtually always vote the same way in cases with predicted ideological outcomes. This manuscript tests the attitudinal model by examining opinions by two federal courts of appeals judges with very similar political ideologies, but different judicial philosophies: J. …

Natural Law, Positive Law, And Conflicting Social Norms In Harper Lee's To Kill A Mockingbird, Maureen E. Markey

Maureen E. Markey

This Article explores the complex interaction of natural law, positive law, and conflicting social norms in To Kill a Mockingbird by Harper Lee, one of the most widely read works in all of American literature and a classic of the Law and Literature canon. Because Atticus Finch, more than any real life lawyer, exemplifies both the personal and professional identity that most lawyers strive for, the novel has been hugely influential in many lawyers= lives. In a profession often stereotyped as greedy, amoral, and uncaring, Atticus represents transcendent moral values, traditionally recognized as a natural law view of the world, …

Can We Talk (With Or Without Beer)? How Triggers For Unconscious Racism Strengthen The Importance Of Dialogue, Adjoa A. Aiyetoro

Adjoa A. Aiyetoro

This article is ultimately about healing the racial divide illustrated by the recent arrest of Henry Louis Gates. It expands on the scholarship of unconscious racism by exploring a trigger for unconscious racism that up to this point scholars have only alluded to: the language of race. It argues that society often censures an African descendant speaker who uses the language of race or racism. This censure occurs because many in American society have embraced the myth of a colorblind society. They believe that to assert otherwise and to question whether there are racial implications associated with a given action …

Judging Jena's Da: The Prosecutor And Racial Esteem, Andrew Taslitz

Andrew E. Taslitz

In the Jena 6 case, six African-American high school students were arrested for assault charges allegedly arising out of a series of confrontations between black and white students stemming from a black student's sitting under the "white tree" on school grounds. The Jena prosecutor successfully arranged for one of the Jena 6 to be tried as an adult, where he was convicted and exposed to the potential of a very harsh sentence. The prosecutor did not, however, proceed, or not proceed as harshly, against several white students who were purportedly involved in violence or threats of violence against black students. …

Lowering The Bar: In Re Van Orden And The Constitutionality Of The 2006 Amendments To Missouri's Sexually Violent Predator Act, Lauren A. Standlee

Lauren A Standlee

Beginning in 1990, states began enacting statutes for the involuntary civil commitment of sexually violent predators. Missouri amended its Sexually Violent Predator Act in 2006. Significantly, the Missouri Legislature reduced the burden of proof necessary to commit such individuals, and implemented a program for their conditional release. The Missouri Supreme Court recently addressed the amendments in In re Van Orden, and upheld the lower burden of proof against constitutional attack. Focusing on Supreme Court of the United States' precedent, the article argues that the 2006 amendments are a blemish on the legislature and the judiciary alike. The paper asserts that, …

The Neuropsychology Of Justifications And Excuses: Some Problematic Cases Of Self-Defense, Duress And Provocation, Theodore Y. Blumoff

Theodore Y. Blumoff

In a famous address to the Aristotelian Society, Professor J. L. Austin provided dictum that has become a part of the conventional wisdom in the jurisprudence of our criminal law. His thesis simultaneously acknowledges the evident moral distinction between justifications and excuses, on the one hand, and the tendency, on the other, for the two doctrines to overlap and confound. From the perspectives of moral philosophy and jurisprudence, the distinction is clear. Justifications are socially approved (or, at least, not disapproved); excuses are not approved, but they obtain because the actor’s conduct reflects a substantial (and therefore judicially acknowledged) cognitive …

“He Speaks Not, Yet He Says Everything; What Of That?” Text, Context, And Pretext In State V. Jeffrey Dahmer., Greg O'Meara,

Greg O'Meara,

In State v. Dahmer, the defense attempted to lead the jury through a series of inferences that would have them conclude that the defendant was insane at the time he committed each of the fifteen murders charged by the State of Wisconsin. They portrayed a client who cooperated fully with the authorities and who was, in the final analysis, too disturbed to be responsible for his actions. To make this approach work, they needed narrative distance between Dahmer and the jury so he would not be interrogated about his prior inconsistent statements and meticulous planning of the killings. Though silence …

The Bush Theory Of The War Power: Authoritarianism, Torture And The So-Called “War On Terror”- A Critique, Christopher L. Blakesley, Judy Meyerson

Christopher L. Blakesley

The Bush Theory of the War Power:

Authoritarianism, Torture and the

So-Called “War on Terror”- A Critique

Christopher L. Blakesley & Thomas B. McAffee

Abstract

Our article addresses the Bush administration’s arrogation of power to the President and its manifestation in the disappearance, imprisonment, and torture of detainees in prisons, including Guantánamo, Bagram, Abu Ghraib, and so-called “black sites,” or prisons in countries that engage in torture. These shameful practices were authorized in the infamous September 25, 2001 Torture Memo and other controversial legal memoranda by John Yoo and other Bush administration attorneys. The memos, which claimed authoritarian executive power …

“Why Rebottle The Genie?”: Capitalizing On Closure In Death Penalty Proceedings, Jody L. Madeira

Jody L Madeira

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant’s constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what …

Recognition Of Overseas Same Sex Marriages: A Matter Of Equality And Sound Statutory Interpretation, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

It is accepted that the institution of marriage is more than economic benefits. The availability of marriage to same sex couples in eight western democratic jurisdictions exerts pressure on courts to consider the substance and ethical dimension of marriage across borders. This paper analyses the legal and ethical problems that exclusion of same sex couples from marriage generates in relation to equality and individual freedoms in a democratic society. The paper focuses on the particular case of overseas same sex married couples that seek to immigrate to England. Part I analyses the legal recognition of overseas same sex marriages under …

Designing Justice: Legal Institutions And Other Systems For Managing Conflict, Lisa Blomgren Bingham

Lisa Blomgren Bingham

This article argues that lawyers are designing justice through institutional and dispute system design, but that we are neither training law students for their new role nor are we having a deliberative discussion of the nature of justice these systems provide. First, I briefly introduce the field of institutional analysis and design in social science. Second, I describe the field of dispute system design (DSD) and apply elements of institutional analysis. Third, I survey how scholars have discussed varieties of justice in relation to legal institutions and other systems for managing conflict. I conclude that we should move more knowingly …

An Attack On Self-Defense, Reid G. Fontaine

Reid G. Fontaine

Debate about the distinction between justification and excuse in criminal law theory has been lively during the last thirty years. Questions as to the nature and structure of various affirmative defenses continue to be raised, and the doctrine of self-defense has been at the center of much discussion. Three main articulations have been advanced: a purely objective theory, a purely subjective theory, and an objective/subjective hybrid. In the present Article, I support a hybrid model and propose a three-requirement framework that delineates the criteria that must be met to satisfy self-defense as a legitimate justification. Because this three-requirement framework raises …

On The Boundaries Of Culture As An Affirmative Defense, Reid Griffith Fontaine, Eliot M. Held

Reid G. Fontaine

A “cultural defense” to criminal culpability cannot achieve true pluralism without collapsing into a totally subjective, personal standard. Applying an objective cultural standard does not rescue a defendant from the external imposition of values—the purported aim of the cultural defense—because a cultural standard is, at its core, an external standard imposed onto an individual. The pluralist argument for a cultural defense also fails on its own terms—after all, justice systems are themselves cultural institutions. Furthermore, a defendant’s background is already accounted for at sentencing. The closest thing to a cultural defense that a court could adopt without damaging the culpability …

The New Laches: Creating Title Where None Existed, Kathryn E. Fort

Kathryn Fort

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will …

The Improper Application Of The Clear-And-Convincing Standard Of Proof: Are Bankruptcy Courts Distorting Accepted Risk Allocation Schemes?, Samir D. Parikh

Samir D. Parikh

Bankruptcy proceedings tend to involve civil disputes where nothing more than money is at stake. In such instances, the application of the preponderance-of-the-evidence standard of proof offers the greatest utility and is aligned with the comparatively minimal importance society places on purely monetary disputes. However, bankruptcy courts are not viewed as typical civil courts. Rather, many view these courts as “courts of equity” and this perception serves as a crutch which many bankruptcy judges use in advocating the application of the clear-and-convincing standard of proof to customary civil disputes. These actions distort the accepted risk allocation schemes implicit in standards …