Law Commons^™

Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy Under Due Process, Tracy A. Thomas

San Diego Law Review

This essay is part of the 2003 Remedies Forum symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of activist courts and judicial legislation have colored the existing scholarship and portrayed remedial …

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

The 1851 Shipowners' Limitation Of Liability Act: Should The Courts Deliver The Final Blow?, Mark A. White

Northern Illinois University Law Review

This comment identifies the 1851 Shipowners' Limitation of Liability Act as an enduring problem within federal maritime law and suggests that the courts may be able to exercise their powers of judicial review to strike it down. The Act was initially adopted at a time when American shipowners were in dire need of protection from potentially ruinous lawsuits. The Act, although hastily drawn, was imperative to the growth of the fledgling American shipping industry. By the end of the nineteenth century, however, numerous forms of liability insurance had been created and America saw the advent of the corporate form. These …

A Process Right Due? Examining Whether A Capital Defendant Has A Due Process Right To A Jury Selection Expert, Steven C. Serio

American University Law Review

No abstract provided.

The Use Of Prior Convictions After Apprendi, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Free Speech And Children's Interests, David Archard

Chicago-Kent Law Review

This Article endorses the conclusion of Etzioni's article that the First Amendment right of free speech should not trump the interests of children. However the picture is more complicated once we recognize that parents have a "basic" right to bring up their children as they see fit that may conflict with the state's duty to protect children in its jurisdiction.

Moreover there is an important difference between protecting children now from harms and safeguarding the interests of the adults they will grow into. Society has an interest in protecting children based upon its fundamental interest in ensuring the conditions of …

Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry

ExpressO

Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Instruct The Jury: Crane's "Serious Difficulty" Requirement And Due Process, Kenneth W. Gaines

South Carolina Law Review

No abstract provided.

Fun With Dick And Jane And Lawrence: A Primer On Education Privacy As Constitutional Liberty, Susan P. Stuart

Law Faculty Publications

No abstract provided.

Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy, Tracy A. Thomas

Akron Law Faculty Publications

This essay is part of a symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of "activist courts" and "judicial legislation" have colored the existing scholarship and portrayed remedial action as illegitimate …

The Role Of The Parent/Guardian In Juvenile Custodial Interrogations: Friend Or Foe?, Hillary B. Farber

Faculty Publications

Part II briefly sets out the historical context of juvenile delinquency proceedings before and after the landmark U.S. Supreme Court case In re Gault. Part III discusses the two current approaches to assessing the validity of a juvenile's waiver. Part IV examines three inadequacies with the parent/guardian advisor: (1) the standardless approach with which courts assess their appropriateness; (2) the inadequacy with which adults understand Miranda; and (3) the conflicts of interest that arise in this context. Part V analogizes to the abortion and paternity contexts to support the argument that lawyers should act as primary advisors to …

Aids And Adolescents, Rhonda Gay Hartman

Journal of Health Care Law and Policy

No abstract provided.

The Story Of Shaffer: Allocating Jurisdictional Authority Among The States, Wendy Collins Perdue

Law Faculty Publications

Shaffer v. Heitner is one of a long series of Supreme Court cases addressing the scope of state-court territorial authority. Indeed, Shaffer is the first of a dozen modern cases that delineated the Court's current conception of the constitutional limits on state-court jurisdictional authority.

Determining whether a court has jurisdiction to hear a dispute is an important preliminary step in any litigation. But the constitutional doctrine the Court has developed in this area is also an interesting window on the Court's more general understanding of the allocation of power among the states.

Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy, Tracy A. Thomas

Tracy A. Thomas

This essay is part of a symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of "activist courts" and "judicial legislation" have colored the existing scholarship and portrayed remedial action as illegitimate …

Supreme Court 2002 Term - The Property Cases: Iolta, Qui Tam Actions, And Punitive Damages (Symposium: The Fifteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

The Impact Of Recent U.S. Supreme Court Punitive Damages Jurisprudence On Oklahoma's Punitive Damages Statute And Jury Instructions, Andrew C. Jayne

Oklahoma Law Review

No abstract provided.

Courts Over Constitutions Revisited: Unwritten Constitutionalism In The States, Thomas B. Mcaffee, Nathan N. Frost, Rachel Beth Klein-Levine

Scholarly Works

A good deal of modern debate in constitutional law has concerned the appropriate methods for construing constitutional rights. But the focus on “individual rights” has sometimes prompted us to pay too little attention to the “right” deemed most fundamental by those who brought us the state and federal constitutions: the right of the people collectively to make determinations about how they should be governed. The author demonstrates that the key to understanding the development of the power of judicial review, both by the United States Supreme Court and by the highest courts of the states, is to perceive courts as …

Student Suspension For Possession Of Contraband In Student Vehicles: Correct Guidance From The Tenth Circuit, Larry Lewis

Oklahoma Law Review

No abstract provided.

An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude

Articles by Maurer Faculty

This article previews the Supreme Court's decision in the Guantánamo prisoners' cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system …

Due Process Denied: Judicial Coercion In The Plea Bargaining Process, Richard Klein

Scholarly Works

No abstract provided.

A Double Due Process Denial: The Crime Of Providing Material Support Or Resources To Designated Foreign Terrorist Organizations, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

A Look Back On A Half-Century Of Teaching, Writing And Speaking About Criminal Law And Criminal Procedure, Yale Kamisar

Articles

When I look back at my academic career, I realize that, as hard as I tried to plan things, various events often overrode my plans.

Bolling Alone, Richard A. Primus

Articles

Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually no …

Procedural Justice, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This article begins in part I, Introduction, with two observations. First, the function of procedure is to particularize general substantive norms so that they can guide action. Second, the hard problem of procedural justice corresponds to the following question: How can we regard ourselves as obligated by legitimate authority to comply with a judgment that we believe (or even know) to be in error with respect to the substantive merits?

The theory of procedural justice is developed in several stages, beginning with some preliminary questions and problems. The first question--what is procedure?--is the most difficult and requires an extensive …

Use Of Secret Evidence By Government Lawyers: Balancing Defendants' Rights With National Security Concerns, Tracy L. Conn

Cleveland State Law Review

The ability to use secret evidence in trials involving national security matters is an extremely controversial power of the government lawyer. Although the use of secret evidence was a divisive issue before September 11, 2001, the terrorist attacks that day sparked the passage of new legislation that increased the power of the government lawyer to use classified evidence. By examining the cases involving secret evidence both before and after September 11, in particular the case of Zacarias Moussaoui, it becomes apparent that what is at stake is the appropriate balance between national security concerns and the constitutional rights of defendants. …