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Articles 1 - 5 of 5
Full-Text Articles in Law
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia
Journal Articles
In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …
Preclusion And Criminal Judgment, Lee Kovarsky
Preclusion And Criminal Judgment, Lee Kovarsky
Notre Dame Law Review
The defining question in modern habeas corpus law involves the finality
of a state conviction: What preclusive effect does (and should) a criminal
judgment have? Res judicata and collateral estoppel —the famous preclusion
rules for civil judgments—accommodate basic legal interests in fairness,
certitude, and sovereignty. Legal institutions carefully calibrate the preclusive
effect of civil judgments because judicial resources are scarce, because
the reliability and legitimacy of prior process can vary, and because courts
wield the authority of a repeat-playing sovereign that will find its own civil
judgments attacked in foreign litigation. In stark contrast to the legal sophistication
lavished on …
Beyond Law And Fact: Jury Evaluation Of Law Enforcement, Lauren M. Ouziel
Beyond Law And Fact: Jury Evaluation Of Law Enforcement, Lauren M. Ouziel
Notre Dame Law Review
Criminal trials today are as much about the adequacy and legitimacy of the defendant’s accusers—police and prosecutors—as the alleged deeds of the accused. Yet we lack theory to conceptualize this reality, doctrine to set its parameters, and institutional mechanisms to adapt to it. The traditional framework used by courts and scholars to delineate the jury’s role—along the continuum between “fact-finding” and “law-finding”—is inadequate to the task. Jury evaluations of law enforcement are more accurately conceptualized as enforcement-finding, a process that functions both in and outside that continuum. In considering enforcement-finding’s justification and proper scope, history offers a useful analytical frame. …
Representing The United States Government: Reconceiving The Federal Prosecutor's Role Through A Historical Lens, Scott Ingram
Representing The United States Government: Reconceiving The Federal Prosecutor's Role Through A Historical Lens, Scott Ingram
Notre Dame Journal of Law, Ethics & Public Policy
For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial …
Constraining Monitors, Veronica Root
Constraining Monitors, Veronica Root
Journal Articles
Monitors oversee remediation efforts at dozens, if not hundreds, of institutions that are guilty of misconduct. The remediation efforts that the monitors of today engage in are, in many instances, quite similar to activities that were once subject to formal court oversight. But as the importance and power of monitors has increased, the court’s oversight of monitors and the agreements that most often result in monitorships has, at best, been severely diminished and, at worst, vanished altogether.
The lack of regulation governing monitors is well documented; yet, the academic literature on monitorships to date has largely taken the state of …