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The Mistake Of Fact Defense And The Reasonableness Requirement, Margaret F. Brinig

Journal Articles

This article examines specifically the mistake of fact defense and its disparate treatment under these two systems of justice. The British approach is to retain a subjective element in the mistake of fact defense, while American courts impose an objective "reasonableness" requirement. The substantive criminal law approach, utilizing the concept of mens rea, will be discussed first, and will be followed by a treatment of recent American constitutional developments in the area of burden of proof standards in their criminal context. Finally, two factually similar rape cases, one British and one American, will be analyzed to show the present contrasting …

Sentencing In Indiana: Appellate Review Of The Trial Court's Discretion, John Eric Smithburn

Journal Articles

Two significant developments, legislative and judicial, have taken place in Indiana criminal law in recent months which may offer an effective response to the problem of unguided discretionary sentencing. The Indiana Penal Code has been revised to require that the trial court, before sentencing a convicted felon, conduct a separate hearing for the purpose of determining the appropriate sentence and to make a record of the hearing which must include a statement of the court's reasons for selecting the sentence imposed. The General Assembly has also provided specific directives which the trial court must consider in determining a proper sentence …

The Development Of The Federal Law Of Gambling, G. Robert Blakey, Harold A. Kurland

Journal Articles

The Commission on the Review of the National Policy Toward Gambling, believing that the States should have the primary responsibility for determining what forms of gambling may legally take place within their borders, recently suggested that the federal government should prevent interference by one State with the gambling policies of another, and should act to protect identifiable national interests.

Although this broad recommendation reinforces the role the federal government has traditionally played in regulating gambling, the Commission also proposed specific amendments to the cur- rent federal gambling laws. Should Congress act upon the Commission's report or otherwise attempt a comprehensive …

Christian Theories Of Professional Responsibility, Thomas L. Shaffer

Journal Articles

Consideration of the religious and moral significance of legal practice is a subject to which too little attention has been paid in American legal education. Louis M. Brown has been one of those few engaged in the teaching of law who has explored the ethical components of lawyering; his example has been a great influence on many of us. It seems appropriate, therefore, in this tribute to Louis M. Brown, to consider the role which Christian values may play in producing lawyers who are well-developed in interpersonal as in professional skills.

This essay will seek to relate Christian values to …

Report Of The Dean 1973-1974, Thomas L. Shaffer

Journal Articles

My assessments of the Law School have tended more to describe developments than to state aspirations. I continue to assess things in that vein; my preference for leadership in the Dean's Office is to build on the goals which are implicit in the work of the tireless, dedicated people who teach and learn law at Notre Dame. My hope in approaching our enterprise in this way is to discover myself, and to help my colleagues discover, the power with which they serve God, the University, the community, our embattled profession, and one another. "This power in us," St. Paul said, …

American Legal Education: An Agenda For Research And Reform, Barry B. Boyer, Roger C. Cramton

Journal Articles

Reprinted in American Legal Education: An Agenda for Research and Reform, Barry B. Boyer & Roger C. Cramton (American Bar Foundation 1974).

Report Of The Dean 1972-1973, Thomas L. Shaffer

Journal Articles

These are curious times for American legal education, especially curious perhaps at this university law school, because we claim adherence to the traditions of Thomas More. Our profession has for more than two centuries provided rulers for America, as it provided leaders, including More himself, for More's England—presidents and speakers, senators and administrators, benign manipulators in American corridors of power. More than a few of America's lawyer leaders have been educated at Christian, university law schools, and, as I think about Notre Dame law students this summer, I hope we are educating more than a few replacements for the lawyer-leaders …

Criminal Law And Procedure--Bringing It Home, Fernand N. Dutile

Journal Articles

When I first began teaching six years ago at the Catholic University Law School, one of the two sections of Criminal Law and Procedure assigned to me was approximately 33 % larger than the other. I remember feeling a considerable difference in atmosphere in the two sections, due to the numbers involved. In the smaller section, discussion seemed more intimate, more coherent, more shared by all the students. I felt able to know students better and more quickly. It is stunning now to realize that the larger section in that 1966-67 school year numbered 32 students! When I left Catholic …

American Civil Liberties And Constitutional Change, Donald P. Kommers

Journal Articles

This essay is an attempt to analyze, for the non-American reader especially, some of the factors that affect the condition of civil liberties in the United States. It deals mainly with the U.S. Supreme Court and its effort to define the limits of personal freedom within the framework of the American constitutional system. This effort has been a main preoccupation of the Supreme Court during the last two decades or so as the social conflicts besetting America have taken the form, as they usually do, of constitutional conflicts that the Court must eventually decide. Most of these questions have represented …

Judicial Review In Italy And West Germany, Donald P. Kommers

Journal Articles

This is a comparative study of the constitutional courts of Italy and West Germany. These institutions, established in the 1950's, have settled hundreds of constitutional disputes. And their caseloads continue to rise in volume. The time seems ripe, therefore, briefly to review the work of these tribunals and to relate this work to the condition of constitutional democracy in the two polities. It should be remarked that this is not fundamentally a study in constitutional jurisprudence. The main purpose of this article is to see how judicial review has actually operated, what its effects have been, and what its future …

Codification, Reform, And Revision: The Challenge Of A Modern Federal Criminal Code, John L. Mcclellan

Journal Articles

The four chief factors influencing the quality of American justice were identified by Dean Roscoe Pound as personnel, administration, procedure, and the substantive law. It is certain that better judges, prosecutors, and enforcement officers, better organization of courts, better administrative methods, and more adequate administrative personnel must come first in any effective program for the improvement of our nation's system of criminal justice. At the same time, the men who staff that system will be guided by an authoritatively prescribed criminal procedure, and they will be giving effect to an authoritatively prescribed criminal law. An archaic code of procedure and …

The Machinery Of Criminal Justice In England And The United States, William Burns Lawless

Journal Articles

This article will lay side by side the major structures of the English and American criminal law procedures and will attempt to draw some conclusions helpful to strengthening American technique. Such a comparison is relevant at this time because of the mounting concern of the American people with the problem of crime and the particular feeling that, in some mysterious way, our courts or the men who man them have not properly responded to the cruel waves of lawlessness which engulf us. In other quarters, there is a feeling that the police are either inept or inadequate to the challenge …

The Organized Crime Act (S. 30) Or Its Critics: Which Threatens Civil Liberties, John L. Mcclellan, G. Robert Blakey

Journal Articles

On January 23, 1970, the Senate passed by the overwhelming vote of 73 to 1, S. 30, the Organized Crime Control Act of 1969. During the debate in the Senate, S. 30 was subjected to indiscriminate charges that it would, in the words of the American Civil Liberties Union, "make drastic incursions on civil liberties" and that it ran "counter to the letter and spirit of the Constitution."

Certain newspaper commentators and a prominent mayor have echoed those charges, and recently a report critical of several key titles of S. 30 was published by the Committee on Federal Legislation of …

Liability Without Fault: Logic And Potential Of A Developing Concept, Janet S. Lindgren

Journal Articles

No abstract provided.

Jury Consideration Of Parole, Fernand N. Dutile

Journal Articles

Under our system of criminal justice, a jury faces two basic decisions: the determination of guilt and, in many cases, the selection of an appropriate penalty for the convicted. In both instances the jurors' impressions of the parole system could be crucial. For example, the jury's notion—correct or incorrect—that the defendant will be eligible for parole very quickly if sentenced to prison may cause it to compromise on the issue of guilt. In cases where the jury has discretion in setting the penalty, this notion may seduce it into selecting the death penalty over life imprisonment.

There are additional problems …

A Proposed Electronic Surveillance Control Act, G. Robert Blakey, James A. Hancock

Journal Articles

The purpose of this article is not to enter into the still active debate on the propriety of electronic surveillance, nor is it to reexamine the policy arguments for and against court order electronic surveillance legislation. Debate needs to be brought down to specifics. Mr. Justice Holmes had a favorite admonition, "[T]hink things instead of words." It is our purpose, therefore, to give to that debate a concrete proposal." Our proposal is a statute that is intended to serve as a starting point for meaningful dialogue; it is not meant to be the final word in the debate.

Direct Restraint On The Press, Thomas L. Shaffer

Journal Articles

If I were to suggest that the public force be used to silence and hide sources of information about government as Mr. Cooper's committee, the Supreme Court of New Jersey, the United States Attorney General, and United States Senator Morse have suggested, I could begin with impressive authority. If I were to suggest nothing at all, as the organized press has done, I could begin with swelling rhetoric on the nature of man. But for my suggestion, direct restraint on the press, the only thing at hand is a fable, the story of a crisis that nearly prevented the marriage …

A Role For Law Schools In Oeo's Legal Services Program, Thomas F. Broden

Journal Articles

A breath of fresh air has blown into many law schools because of the national antipoverty program in general and the Legal Services Program of the Office of Economic Opportunity (OEO) in particular. The antipoverty program has quickened the consciences of many legal educators who for the first time clearly see how little they have done to focus attention on the legal problems of the poor.

The main focus of legal education has been on the typical problems of paying clients. Consequently, there has been little effort to teach law as a helpful instrumentality for the indigent except perhaps in …

The Rule Of Announcement And Unlawful Entry: Miller V. United States And Ker V. California, G. Robert Blakey Professor

Journal Articles

Mr. Justice Frankfurter, in his classic dissent in United States v. Rabinowitz, pointed out that "the safeguards of liberty have frequently been forged in controversies involving not very nice people." Few cases decided by the Supreme Court since Rabinowitz have better illustrated that observation than Miller v. United States and Ker v. California. This Article will consider the problems posed in the administration of federal criminal justice by the "liberty forged" in these two decisions.

Until the Miller decision in 1958, the Supreme Court had never squarely considered and decided a question of announcement and unlawful entry. It is therefore …

Developments In Judicial Jurisprudence, John M. Finnis

Journal Articles

The purpose of this Comment is to explore briefly the fundamentals of what Prof. H. L. A. Hart has called "the contribution offered by the judges to the jurisprudence of our day", and to indicate in outline the disparity between this contribution and those of the most recent academic writings.

Proposed Legislation For Enforcement Of Prohibition, Thomas Frank Konop

Journal Articles

Under date of November 21st, 1929, the Commission on Law Observance and Enforcement made a preliminary report to the President on observance and enforcement of prohibition. Under subdivision (D) of that report, the Commission offered three methods to relieve the congestion in the Federal Courts. Although the bills are constitutional, they will not relieve congestion. Instead, the will promote fraud and lower citizens' respect for the Federal Judiciary and the Constitution.