Digital Commons Network^™

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

The Scientific Model Of Jurisprudence, Dan Priel

All Papers

I argue in this essay that the popular “descriptive” approach to jurisprudence can be modeled after attempts at explaining natural phenomena by scientists. I present four assumptions that are underlying this approach to jurisprudence, which are similar to those of natural scientists. I then argue, however, that in the case of jurisprudence (and unlike the natural sciences) these assumptions contradict each other. After presenting my case I respond to several potential replies to my argument. If my arguments are correct, this shows that jurisprudential descriptivism is not just, as some have argued, unimportant, but rather that it is impossible. The …

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

Articles & Book Chapters

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

Samantar V. Yousuf: Development In The Laws Governing Civil Torture Claims In U.S. Courts., Solomon Shinerock

Solomon B. Shinerock

The Supreme Court’s recent opinion in Samantar v. Yousuf forecloses one possible avenue by which former foreign-government officials residing in the United States have sought to escape liability for human rights violations. Ruling simply that the Foreign Sovereign Immunities Act of 1976 does not provide immunity to individuals, the decision raises the question of what common law principles will govern the issue in the future. This article reviews the case and the common law doctrines that are likely to figure prominently in future civil suits alleging torture. Ultimately, the Samantar decision read together with existing principles of domestic and international …

A Good Score?: Examining 20 Years Of Drug Courts In The United States And Abroad, Kimberly Y.W. Holst

Kimberly Y.W. Holst

In 2009, we saw the passing of the twentieth anniversary of drug courts in the United States, this timing presents an opportune moment to review the state of drug courts in the United States and the development of drug courts internationally. While the United States has served as a model and a leader in the creation and development of drug courts, countries all over the world have tweaked the United States’ model and have altered the landscape in the structure and development of drug courts. Section II of this article briefly discusses the development and current status of drug courts …

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether

Working Paper Series

Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in 'Girls Like You', like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, “real rape” victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including 'Girls Like You', recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, …

Modal Retributivism: A Theory Of Sanctions For Attempts And Other Criminal Wrongs, Anthony M. Dillof

Anthony M. Dillof

How much punishment, in terms of size and severity, should a person get committing for a given offense? Operating in a deontological framework, the article attempts to answer the question of criminal punishment severity in a unified, principled manner. There is a wide-spread intuition that when it comes to figuring out what punishment a person deserves, &#;harm matters.&#; The idea that Aharm matters@ is the basis for harm-based retributivism. The article begins by critiquing harm-based retributivism. Proponents of harm-based retributivism believe that attempts should be punished less than completed offenses, but how much less? One-half? Three-quarters? The problem with harm-based …

Revitalizing The Adversary System In Family Law, Jane C. Murphy

All Faculty Scholarship

The way in which families resolve disputes has undergone dramatic change over the last decade. Scholars have focused much attention on a number of substantive law changes that have contributed to this transformation. These include the changing definitions of marriage, parenthood, and families. But less attention has been paid to the enormous changes that have taken place in the processes surrounding family dispute resolution. These changes have been even more comprehensive and have fundamentally altered the way in which disputing families interact with the legal system. Both the methods and goals of legal intervention for families in conflict have changed, …

Bloomin' Buzzin' Confusion: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

Robert Rubinson

Bloomin’ Buzzin’ Confusion: Facts and Meaning In Adjudication and Mediation ABSTRACT Any methodology, model, or cognitive process must exclude more than it includes in order to make sense of experience. To do otherwise would leave only, in the words of William James, a “bloomin’ buzzin’ confusion.” Mediation and adjudication go about the process of developing meaning from circumstance in fundamentally different ways. Rather than focusing on what each process identifies as important, the article takes the opposite perspective and focuses on what each process excludes. In doing so, the article explores how adjudication identifies relevant “facts” through a specific mechanism: …

Bloomin' Buzzin' Confusion: Facts And Meaning In Adjudication And Mediation, Robert Rubinson

Robert Rubinson

Any methodology, model or cognitive process must exclude more than it includes in order to make sense of experience. To do otherwise would leave only, in the words of Williams James, a "bloomin' buzzin' confusion." Mediation and adjudication go about the process of developing meaning from circumstance in fundamentally different ways. Rather than focusing on what each process identifies as important, the article takes the opposite perspective and focuses on what each process excludes. In doing so, the article explores how adjudication identifies relevant "facts" through a specific mechanism: preexisting substantive rules define what matters and procedural rules exclude what …

Indecisive Reasons For Action: Socrates, Not Hercules, As Judicial Ideal, Eric J. Miller

Eric J. Miller

Ronald Dworkin famously introduces the idealized judge, Hercules, to demonstrate how to identify one right answer for any legal problem. Since judicial disagreement makes sense, according to Dworkin, against the background of plural theories of the good, Hercules solves a particular political problem: how to avoid apathy or indecisiveness in choosing among competing theories. Dworkin's judge is supposed to stand by his or her political convictions in the face of competing, plural points of view. Choosing the one right answer is thus a method of political commitment.

My claim is that Dworkin is caught between a rock and a hard …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin

Michael L Perlin

Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing.

What …

Evaluating Children’S Competency To Testify: Developing A Rational Method To Assess A Young Child’S Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse, Laurie Shanks

Laurie Shanks

There are few crimes which elicit a response as emotionally charged as those involving an allegation of child sexual abuse. Given the paucity of physical and scientific evidence in many cases and the resulting need to rely almost exclusively on the testimony of a very young child, the cases present unique challenges for judges, prosecutors and criminal defense attorneys. While many scholars have addressed the dangers inherent in questioning children, such as creating false memories and improperly influencing testimony, there has been little exploration of the means employed by courts to evaluate a child’s ability to offer reliable testimony. Many …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

Linda H. Edwards

We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines have stories too. When we talk about legal authority, using all our best formal logic and its bedfellows of analogy and policy, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, we don’t know who discovered the ocean, but it probably wasn’t a fish.

This article teases out several familiar archetypes hidden in discussions of cases and …

Justifying The Distinction Between Justifications And Power, Miriam Gur-Arye

Miriam Gur-Arye Professor

In Anglo-American legal systems criminal law justifications apply to both public officials exercising legal power (as when a police officer arrests a suspect) and, in exceptional circumstances (such as self-defense) to individuals infringing interests protected by the criminal law. This paper relies on Hohfeld's distinction between "Powers" and "Claim Rights" and argues that there are two kinds of criminal law justifications. Public officials who arrest a suspect or who sentence a defendant to imprisonment exercise their power to change the legal status of the suspect's or the defendant's right to free movement. By contrast, an individual who kills an aggressor …

Modal Retributivism: A Theory Of Sanctions For Attempts And Other Criminal Wrongs, Anthony M. Dillof

Anthony M. Dillof

How much punishment, in terms of size and severity, should a person get committing for a given offense? Operating in a deontological framework, the article attempts to answer the question of criminal punishment severity in a unified, principled manner. There is a wide-spread intuition that when it comes to figuring out what punishment a person deserves, harm matters. The idea that “harm matters” is the basis for harm-based retributivism. The article begins by critiquing harm-based retributivism. Proponents of harm-based retributivism believe that attempts should be punished less than completed offenses, but how much less? One-half? Three-quarters? The problem with harm-based …