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Full-Text Articles in Law

Finding Law, Stephen E. Sachs Jan 2019

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Acknowledgments, Howard S. Carrier Apr 2018

Acknowledgments, Howard S. Carrier

International Journal on Responsibility

Serious work to bring the International Journal on Responsibility to life commenced during the summer of 2015. In the intervening period between conceptualization and publication, many organizations and individuals within James Madison University and the wider community have contributed enormously to bringing the journal to fruition.


Who Is Responsible For Ethical Legal Education, For What And To Whom? Case Of Kosovo, Sabiha Shala, Gjylbehare Muharti Apr 2018

Who Is Responsible For Ethical Legal Education, For What And To Whom? Case Of Kosovo, Sabiha Shala, Gjylbehare Muharti

International Journal on Responsibility

Legal education continues to be one of the most demanded areas of study from the younger generation in Kosovo. As result, the number of law graduates is quite high. On the other hand, the rule of law sector is quite fragile, judges and lawyers are perceived by parts of the society to be ethically dysfunctional. The trust in judicial institutions is quite low. The debate which is going on now is whose main responsibility for such a situation that is. Is the duty of the higher education institutions providing legal education, or is it a responsibility of educational institutions at ...


Resolving The Paradox Of Holding People Responsible, Hal Pepinsky Apr 2018

Resolving The Paradox Of Holding People Responsible, Hal Pepinsky

International Journal on Responsibility

Regardless of justification, it is commonplace throughout the U.S. criminal justice system as in everyday life to teach our offenders and children alike that wrong actions “have consequences,” namely, those authority figures promise to impose upon them. We do so in the name of holding people responsible for their actions, or in legal parlance in civil law, holding them accountable or liable. I noticed that in Norwegian, responsibility, accountability and liability translate into one word, ansvar, which I have translated from Germanic to Latin roots as “responsiveness.” In practice, the state of being responsive to others with whom one ...


Political Flip-Flopping, Political Responsibility, Current Governance, And The Disenfranchised, T.Y. Okosun Apr 2018

Political Flip-Flopping, Political Responsibility, Current Governance, And The Disenfranchised, T.Y. Okosun

International Journal on Responsibility

No abstract provided.


What Does Responsibility Mean To Me?, Arun Gandhi Apr 2018

What Does Responsibility Mean To Me?, Arun Gandhi

International Journal on Responsibility

No abstract provided.


Who Is Responsible To Do What For Whom? A Letter From The Editor-In-Chief, Terry Beitzel Apr 2018

Who Is Responsible To Do What For Whom? A Letter From The Editor-In-Chief, Terry Beitzel

International Journal on Responsibility

No abstract provided.


The Normalization Of Prostitution In Switzerland: The Origin Of Policies, Corinne Isler, Marjut Jyrkinen Apr 2018

The Normalization Of Prostitution In Switzerland: The Origin Of Policies, Corinne Isler, Marjut Jyrkinen

Dignity: A Journal on Sexual Exploitation and Violence

In this article, we examine how socio-political actors frame prostitution and problems attached to the phenomenon and what types of policies they suggest. The sex trade in Switzerland has been tolerated since 1942, and prostitution is protected under the economic freedom guaranteed by the Swiss constitution. Any critique of prostitution is viewed as counterproductive, claimed to be rooted in old-fashioned ideas about sexuality and thought to worsen the situation for women who sell sex. The role of sex buyers is largely obscured, and the presumed right to buy sex remains unquestioned.


Petitioning And The Making Of The Administrative State, Maggie Mckinley Mar 2018

Petitioning And The Making Of The Administrative State, Maggie Mckinley

Faculty Scholarship

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state ...


Back Matter, Adfsl Feb 2018

Back Matter, Adfsl

Annual ADFSL Conference on Digital Forensics, Security and Law

No abstract provided.


Front Matter, Adfsl Feb 2018

Front Matter, Adfsl

Annual ADFSL Conference on Digital Forensics, Security and Law

No abstract provided.


Contents, Adfsl Feb 2018

Contents, Adfsl

Annual ADFSL Conference on Digital Forensics, Security and Law

No abstract provided.


Review, The New Era Of Secret Law, Patrice Mcdermott Feb 2018

Review, The New Era Of Secret Law, Patrice Mcdermott

Secrecy and Society

In a recent Brennan Center report, The New Era of Secret Law, Elizabeth (Liza) Goitein articulates, examines, and evaluates the claims for and objections to secret law. Under this banner, the report includes any law that is withheld from the public, regardless of whether it may be shared among agencies or with certain members or committees of Congress.” Goitein’s underlying goal is to propose procedural and substantive reforms. Secret Law is a deeply-researched and highly valuable policy brief with an aim of making specific policy recommendations. And readable to boot.


Panel Discussion: Author Meets Critic Feb 2018

Panel Discussion: Author Meets Critic

Northwestern Journal of Law & Social Policy

No abstract provided.


Waiting For Justice, Jeffrey Bellin Feb 2018

Waiting For Justice, Jeffrey Bellin

Popular Media

One man’s seven-year wait for a trial reveals the ways mandatory minimums distort our courts.


The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne Jacobs Feb 2018

The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne Jacobs

Law Publications

In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions,d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used ...


The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne A. Jacobs Feb 2018

The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne A. Jacobs

Laverne Jacobs

In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions,d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used ...


Moral Mode Switching: From Punishment To Public Health, Stephen Koppel Feb 2018

Moral Mode Switching: From Punishment To Public Health, Stephen Koppel

All Dissertations, Theses, and Capstone Projects

A public health response to drug offenses has potential to improve both public safety and public health. However, the public’s desire for retribution represents a possible hindrance to reform. Relying on dual-process theory of moral decision-making, this dissertation examines agreement among laypeople about the relative blame deserved for various crime types, and probes several possible predictors of support—the need for cognition (“NFC”), intergroup bias, and free-will doubt—for retributive as well as consequentialist responses to crime. Findings from several web-based experiments show: (a) in comparison to core crimes (eg., murder) substantially less agreement about the relative blame deserved ...


Now You See Me: Problems And Strategies For Introducing Gender Self-Determination Into The Eighth Amendment For Gender Nonconforming Prisoners, Lizzie Bright Jan 2018

Now You See Me: Problems And Strategies For Introducing Gender Self-Determination Into The Eighth Amendment For Gender Nonconforming Prisoners, Lizzie Bright

Journal of Criminal Law and Criminology

As the fight for transgender rights becomes more visible in the United States, the plight of incarcerated transgender individuals seeking medical care behind bars is likewise gaining attention—and some trans prisoners are gaining access to gender-affirming care. However, progress for incarcerated members of the trans community has been slow, piecemeal, and not without problems. As federal court opinions in Eighth Amendment access-to-care cases brought by trans prisoners show, how a court interprets the subjective intent requirements of the Eighth Amendment and how the imprisoned plaintiff pleads his/her/their case can make or break the claim. Further, courts and ...


Biosocial Criminology Versus The Constitution, Karen E. Balter Jan 2018

Biosocial Criminology Versus The Constitution, Karen E. Balter

All Regis University Theses

The continually emerging field of biosocial criminology provides a basis for productively merging biology with sociological reasonings for criminal behavior. Mainstream research in criminology focuses on environmental factors as the sole reason individuals exhibit antisocial behavior patterns and may ultimately commit crimes. Criminological research has travelled in this direction for decades. The current climate within this community subscribes heavily to the notion that biology has very little to do with why people behave the way they do, and if it did, government control would be the norm. The nature of biocriminology opens a door through which constitutional issues may enter ...


The 1492 Jewish Expulsion From Spain: How Identity Politics And Economics Converged, Michelina Restaino Jan 2018

The 1492 Jewish Expulsion From Spain: How Identity Politics And Economics Converged, Michelina Restaino

University Honors Program Theses

In 1492, after Queen Isabella and King Ferdinand defeated the last Muslim stronghold on the Iberian Peninsula, they presented the Jewish community throughout their kingdoms with a choice: leaving or converting to Catholicism. The Spanish kingdoms had been anti-Jewish for centuries, forcing the creation of ghettos, the use of identifying clothing, etc. in an effort to isolate and “other” the Jews, who unsuccessfully sought peaceful co-existence. Those who did not accept expulsion, but converted, were the subject of further prejudice stemming from a belief that Jewish blood was tainted and that conversions were undertaken for financial gain. The government’s ...


Mental Disorder And Criminal Justice, Stephen J. Morse Jan 2018

Mental Disorder And Criminal Justice, Stephen J. Morse

Faculty Scholarship

This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements ...


Prosocial Religion And Games: Lost & Found, Owen Gottlieb, Ian Schreiber Jan 2018

Prosocial Religion And Games: Lost & Found, Owen Gottlieb, Ian Schreiber

Articles

In a time when religious legal systems are discussed without an understanding of history or context, it is more important than ever to help widen the understanding and discourse about the prosocial aspects of religious legal systems throughout history. The Lost & Found (www.lostandfoundthegame.com) game series, targeted for an audience of teens through twentysomethings in formal, learning environments, is designed to teach the prosocial aspects of medieval religious systems—specifically collaboration, cooperation, and the balancing of communal and individual/family needs. Set in Fustat (Old Cairo) in the 12th century, the first two games in the series address laws ...


The Silence Penalty, Jeffrey Bellin Jan 2018

The Silence Penalty, Jeffrey Bellin

Faculty Publications

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.

This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments—including the results of a new 400-person mock juror simulation conducted for this Article—and data from real trials. It concludes that the penalty defendants suffer ...


Finding Lost & Found: Designer’S Notes From The Process Of Creating A Jewish Game For Learning, Owen Gottlieb Dec 2017

Finding Lost & Found: Designer’S Notes From The Process Of Creating A Jewish Game For Learning, Owen Gottlieb

Articles

This article provides context for and examines aspects of the design process of a game for learning. Lost & Found (2017a, 2017b) is a tabletop-to-mobile game series designed to teach medieval religious legal systems, beginning with Moses Maimonides’ Mishneh Torah (1180), a cornerstone work of Jewish legal rabbinic literature. Through design narratives, the article demonstrates the complex design decisions faced by the team as they balance the needs of player engagement with learning goals. In the process the designers confront challenges in developing winstates and in working with complex resource management. The article provides insight into the pathways the team found ...


Adoption Process For The Model Aquatic Health Code: An Example, William D. Ramos, Allison L. Fletcher, Mike Mettler, Marcus A. Yoder Dec 2017

Adoption Process For The Model Aquatic Health Code: An Example, William D. Ramos, Allison L. Fletcher, Mike Mettler, Marcus A. Yoder

International Journal of Aquatic Research and Education

In 2014 the U.S. Centers for Disease Control and Prevention (CDC) published the first edition of the Model Aquatic Health Code (MAHC). This document represented the inaugural introduction of a federal policy guideline with a direct focus in the area of aquatic venue operation and maintenance with the sole purpose of improving the nature of public health in the field. The Indiana State Department of Health (ISDH) began the review and adoption process soon after the policy’s release. The ISDH process is proposed as one method for others to consider. The background and history of the MAHC are ...


Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh Dec 2017

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.


The Investigative Dynamics Of The Use Of Malware By Law Enforcement, Paul Ohm Dec 2017

The Investigative Dynamics Of The Use Of Malware By Law Enforcement, Paul Ohm

William & Mary Bill of Rights Journal

The police have started to use malware—and other forms of government hacking—to solve crimes. Some fear coming abuses—the widespread use of malware when traditional investigative techniques would work just as well or to investigate political opponents or dissident speakers. This Article argues that these abuses will be checked, at least in part, by the very nature of malware and the way it must be controlled. This analysis utilizes a previously unformalized research methodology called “investigative dynamics” to come to these conclusions. Because every use of malware risks spoiling the tool—by revealing a software vulnerability that can ...


Postmodern Social Control: Dividuals And Surveillance, Ernest M. Oleksy Dec 2017

Postmodern Social Control: Dividuals And Surveillance, Ernest M. Oleksy

The Downtown Review

As a society's foundational philosophy changes, so, too, will its forms of social control. By using the works of thinkers like Deleuze and Foucault as pivot points, the dynamic nature of social interactions and the agents to mediate those actions shall be investigated. This article includes findings from archival analysis written in a journalistic prose for simplicity of consumption.


Digital Forensic Readiness In Organizations: Issues And Challenges, Nickson Menza Karie 275404, Simon Maina Karume Dr. Dec 2017

Digital Forensic Readiness In Organizations: Issues And Challenges, Nickson Menza Karie 275404, Simon Maina Karume Dr.

Journal of Digital Forensics, Security and Law

With the evolution in digital technologies, organizations have been forced to change the way they plan, develop, and enact their information technology strategies. This is because modern digital technologies do not only present new opportunities to business organizations but also a different set of issues and challenges that need to be resolved. With the rising threats of cybercrimes, for example, which have been accelerated by the emergence of new digital technologies, many organizations as well as law enforcement agencies globally are now erecting proactive measures as a way to increase their ability to respond to security incidents as well as ...