Digital Commons Network^™

The Right To Silence Helps The Innocent: A Game-Theoretic Analysis Of The Fifth Amendment Privilege, Alex Stein, Daniel J. Seidmann

Faculty Scholarship

No abstract provided.

It's Good To Be The King: Prosecuting Heads Of State And Former Heads Of State Under International Law, Mary Margaret Penrose

Faculty Scholarship

This Article criticizes historical practices regarding the prosecution of sitting and former heads of state. It argues that such persons should stand trial for their alleged crimes. However, as the Article illustrates, state practice and international law as they currently exist offer only limited help toward advancing this goal. Although the Pinochet precedent offers evidence that states may be shifting toward a willingness to prosecute heads of state, Professor Penrose advocates the enactment of prosecutorial rules and regulations and urges countries to take the necessary steps to create an international criminal court so that criminal defendants may be tried in …

The Attorney-Client Privilege: Practical Military Applications Of A Professional Core Value, Joshua E. Kastenberg, Norman K. Thompson

Faculty Scholarship

This article examines the historical development of the attorney-client privilege and then explores the privilege generally before tackling some specific areas where the privilege commonly arises in military practice. We explore important aspects of the privilege from three different perspectives: (1) a prosecution perspective-saving court-martial cases involving alleged compromise of attorney-client privileged material by trial counsel and/or investigators, (2) a defense perspective-using the privilege to protect information about the whereabouts of a client and the contents of a defense counsel's appointment schedule, and, (3) a general military practice perspective-the potential conflicts of interest which may arise when the privilege is …

Liability Without Cause? Further Ruminations On Cause-In-Fact As Applied To Handgun Liability, Aaron Twerski, A. J. Sebok

Faculty Scholarship

No abstract provided.

Environmental Damage Resulting From The Nato Military Action Against Yugoslavia, Aaron Schwabach

Faculty Scholarship

During the 1999 war between NATO and the Federal Republic of Yugoslavia, NATO targeted and destroyed chemical plants and storage facilities at Pancevo, Kragujevac, and elsewhere. A United Nations inspection team found that the NATO attacks had caused measurable, but not catastrophic, environmental damage wityin the territory of Yugoslavia. This article explores the historical evolution and current status of the body of law regarding protection of the environment during wartime, as well as the legality of NATO's actions. It concludes that NATO probably did not violate international law as it currently stands. However, the postwar reactions of states, including the …

Intuition And Technology In Product Design Litigation: An Essay On Proximate Causation, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Enforcement Of Federal Private Rights Against States After Alden V. Maine: The Importance Of Hutto V. Finney And Compensation Via Civil Contempt Proceedings, Gordon G. Young

Faculty Scholarship

No abstract provided.

The Practice Of Law, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Spandau Revisited: The Question Of Detention For International War Crimes, Mary Margaret Penrose

Faculty Scholarship

Drazen Erdemovic. The name may be unfamiliar to many outside the former Yugoslavia. The name will surely be unknown by most people outside the international community and those committed to the universal protection of human rights through criminal prosecution. Drazen Erdemovic is a confessed killer. Drazen Erdemovic has confessed to killing somewhere between seventy and one hundred unarmed Muslims in a mass execution as a member of the Bosnian Serb army in July 1995. In this regard, he is the first convicted defendant to stem from the International Criminal Tribunal for the former Yugoslavia (ICTY) established by the United Nations …

American Lawyers And International Competence, Charlotte Ku, Christopher J. Borgen

Faculty Scholarship

Lawyers trained in U.S. law schools learn that the Constitution gives Congress the power "[t]o define and punish... offenses against the Law of Nations." Some might also be able to cite the oft-quoted dicta from the Supreme Court's decision in The Paquete Habana that "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." But what does this mean for today's practitioner? One century after Paquete Habana, we ask what is international law, …

Wrongful Death: Oklahoma Supreme Court Replaces Viability Standard With "Live Birth" Standard, Fatma Marouf

Faculty Scholarship

Since the United States Supreme Court decision of Roe v. Wade, the line of viability for human fetuses has been consistently pushed back to earlier and earlier gestational ages. Granting "person" status to a nonviable fetus, even if only for purposes of the wrongful death statute, as the Oklahoma Supreme Court did in Nealis v. Baird, represents an important expansion of fetal rights. Although the court explicitly limited its decision to nonviable fetuses born alive, Judge Opala conceded that much of his opinion could apply equally to stillborn fetuses. The court's decision in Nealis raises important questions about …

Law Making For The Baby Making: An Interpretive Approach To The Determination Of Legal Parentage, Marsha Garrison

Faculty Scholarship

No abstract provided.

Shooting From The Lip: United States V. Dickerson, Role [Im]Morality, And The Ethics Of Legal Rhetoric, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

Foreword: Still Unfinished, Ever Unfinished, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Five Worst (And Five Best) American Criminal Codes, Michael Cahill, Paul H. Robinson, Usman Mohammad

Faculty Scholarship

No abstract provided.

Measuring Culpability By Measuring Drugs? Three Reasons To Re-Evaluate The Rockefeller Drug Laws, Susan Herman

Faculty Scholarship

No abstract provided.

Complaints, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Emerging Law Of The Digital Domain And The Contract/Ip Interface: An Antipodean Perspective, Samuel K. Murumba

Faculty Scholarship

No abstract provided.

Colorism: A Darker Shade Of Pale, Taunya Lovell Banks

Faculty Scholarship

In this article, Professor Banks argues that colorism, skin tone discrimination against dark-skinned but not light-skinned blacks, constitutes a form of race-based discrimination. Skin tone discrimination coexists with more traditional forms of race discrimination that impact all blacks without regard to skin tone and phenotype, yet courts seem unwilling to recognize this point. Professor Banks uses employment discrimination cases to illustrate some courts' willingness to acknowledge subtler forms of race-based discrimination, like skin tone discrimination, for white ethnic and Latina/o plaintiffs, but not for black plaintiffs. The inability of courts to fashion coherent approaches to colorism claims involving black claimants …

Alternative Dispute Resolution And The Potential For Gender Bias, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

The Rampart Scandal And The Criminal Justice System In Los Angeles County, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Civil Challenges To The Use Of Low-Bid Contracts For Indigent Defense, Margaret H. Lemos

Faculty Scholarship

In recent years, increasing attention has been directed to the problem of adequate representation for indigent criminal defendants. While overwhelming caseloads and inadequate funding plague indigent defense systems of all types, there is a growing consensus in the legal community that low-bid contract systems-under which the state or locality's indigent defense work is assigned to the attorney willing to accept the lowest fee-pose particularly serious obstacles to effective representation. In this Note, Margaret Lemos argues that the problems typical of indigent defense programs in general-and low-bid contract systems in particular-can and should be addressed through § 1983 civil actions alleging …

The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher

Faculty Scholarship

No abstract provided.

On Equality, Bias Crimes, And Just Deserts, Kenneth Simons

Faculty Scholarship

In a recent article, Professors Alon Harel and Gideon Parchomovsky propose to widen the focus of criminal law beyond the culpability of the offender and the wrongdoing he commits. Criminal law, they believe, should also encompass the state's special egalitarian duty to protect the interests of the most vulnerable victims of crime. They offer this suggestion for two reasons - to give a convincing justification of bias crime legislation, which they claim a retributivist approach cannot do; and, more broadly, to remedy retributivism's supposedly inadequate attention to the interests of crime victims.

Although these egalitarian goals are worthy, the authors' …

Litigators’ Ethics, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Comparing Race And Sex Discrimination In Custody Cases, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Tort Suits For Injuries Sustained During Illegal Abortions: The Effects Of Judicial Bias , Gail D. Hollister

Faculty Scholarship

Most courts hold that, by agreeing to have an illegal abortion, a woman forfeits her right to recover for injuries tortuously inflicted during that abortion. Nevertheless, most courts do permit suits by those injured in the course of committing other crimes, and they usually do so without considering whether plaintiff's criminal conduct should prevent recovery. Part II of this Article explores and discredits the reasons offered for prohibiting recovery in abortion suits. 21 Part III analyzes, on a chronological basis, each state's decisions prohibiting such recovery. Part IV discusses possible explanations for the abortion decisions, noting that these women's claims …

The Chicago Conspiracy Trial: Character And Judicial Discretion, Pnina Lahav

Faculty Scholarship

On October 29, 1969, sometime after two o'clock in the afternoon, following yet another heated exchange with defendant Bobby Seale in a courtroom full of spectators, reporters, and armed guards, Judge Julius Jennings Hoffman turned to a marshal and ordered: "Take that defendant into the room in there and deal with him as he should be dealt with in this circumstance."' Judge Hoffman described the aftermath:

In an attempt to maintain order in the courtroom, the Court thereupon ordered the defendant Seale removed from the courtroom at which time he was forcibly restrained by binding and gagging. The defendant Seale …

A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy

Faculty Scholarship

In recent years, two women stood convicted of highly publicized major crimes in Massachusetts. Katherine Ann Power ("Power") was a fugitive who committed felony-murder in 1970. She led a life on the run as a fugitive until 1993 when she revealed her true identity and surrendered to authorities to face the consequences of her crimes. Louise Woodward ("Woodward"), an au pair originally from England, gained notoriety on both sides of the Atlantic Ocean when she was convicted of killing the baby entrusted to her care. Both women captured the attention of the national media for months and reportedly had opportunities …

Whatever Happened To Anti-Semitism? How Social Science Theories Identify Discrimination And Promote Coalitions Between "Different" Minorities, Clark Freshman

Faculty Scholarship

No abstract provided.