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Articles 1 - 3 of 3
Full-Text Articles in Law
Judicial Formalism And The State Secrets Privilege, Sudha Setty
Judicial Formalism And The State Secrets Privilege, Sudha Setty
Faculty Scholarship
Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …
Rule 801(D)'S Oxymoronic 'Not Hearsay' Classification: The Untold Backstory And A Suggested Amendment, Sam Stonefield
Rule 801(D)'S Oxymoronic 'Not Hearsay' Classification: The Untold Backstory And A Suggested Amendment, Sam Stonefield
Faculty Scholarship
This Article examines Rule 801(d)’s oxymoronic treatment of admissions and prior statements as “not hearsay.” This “not hearsay” label is inaccurate – the evidence is hearsay, as defined in Rule 801(c) – and is inconsistent with the analytically important and well-established use of the term not hearsay to describe evidence that is actually not hearsay.
The Article tells the story of how the drafters of the Federal Rules of Evidence ended up with such a confused and confusing label and proposes an amendment that would classify admissions and prior statements as hearsay exceptions and place each in a new, separate, …
Fixing The Fatal Flaws In Oui Implied Consent Laws, Tina Wescott Cafaro
Fixing The Fatal Flaws In Oui Implied Consent Laws, Tina Wescott Cafaro
Faculty Scholarship
This Article explores the use of implied consent laws as a method of deterring and punishing alcohol-impaired driving. Part I introduces the history and purpose of implied consent laws. Part II discusses the inadequacies of current statutory implied consent provisions and their failure to effectively attain their designed purpose. This section also highlights two particularly detrimental aspects of the law as currently implemented: (1) the lack of uniformity in the application of the laws by individual states; and (2) the disparate treatment of persons who refuse to submit to BAC testing, both in terms of consequences of refusal to submit …