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Articles 1 - 6 of 6
Full-Text Articles in Law
30 = 20: ‘Understanding’ Maximum Sentence Enhancements, Frank R. Herrmann S.J.
30 = 20: ‘Understanding’ Maximum Sentence Enhancements, Frank R. Herrmann S.J.
Frank R. Herrmann, S.J.
In this article, Professor Herrmann argues that the due process protections of a criminal trial should apply to aggravating factors that under current “maximum-enhancing statutes” allow judges to impose lengthier punishments in the sentencing phase. Part I considers the Supreme Court's rationale for refusing to apply full due process safeguards to all types of sentencing schemes. This background will reveal the unique quality of maximum-enhancing statutes and establish why the due process protections of a criminal trial should apply to sentencing under maximum-enhancing statutes. Part I, therefore, undertakes to explain courts' rationales to deny criminal defendants full criminal due process …
Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert
Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert
St. Mary's Law Journal
Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these …
Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier
Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier
St. Mary's Law Journal
Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
St. Mary's Law Journal
The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …
What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii
What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii
All Faculty Scholarship
In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges …
Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel
Fundamental Norms, International Law, And The Extraterritorial Constitution, Jules Lobel
Articles
The Supreme Court, in Boumediene v. Bush, decisively rejected the Bush Administration's argument that the Constitution does not apply to aliens detained by the United States government abroad. However, the functional, practicality focused test articulated in Boumediene to determine when the constitution applies extraterritorially is in considerable tension with the fundamental norms jurisprudence that underlies and pervades the Court’s opinion. This Article seeks to reintegrate Boumediene's fundamental norms jurisprudence into its functional test, arguing that the functional test for extraterritorial application of habeas rights should be informed by fundamental norms of international law. The Article argues that utilizing international law’s …