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Articles 1 - 28 of 28
Full-Text Articles in Law
Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton
Future-Proofing U.S. Laws For War Crimes Investigations In The Digital Era, Rebecca Hamilton
Articles in Law Reviews & Other Academic Journals
Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.
This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It …
Digital Habit Evidence, Andrew Guthrie Ferguson
Digital Habit Evidence, Andrew Guthrie Ferguson
Articles in Law Reviews & Other Academic Journals
This Article explores how “habit evidence” will become a catalyst for a new form of digital proof based on the explosive growth of smart homes, smart cars, smart devices, and the Internet of Things. Habit evidence is the rule that certain sorts of semiautomatic, regularized responses to particular stimuli are trustworthy and thus admissible under the Federal Rules of Evidence (“FRE”) 406 “Habit; Routine Practice” and state equivalents.
While well established since the common law, “habit” has made only an inconsistent appearance in reported cases and has been underutilized in trial practice. But intriguingly, once applied to the world of …
[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro
[Marked Confidential]: Negative Externalities Of Discovery Secrecy, Gustavo Ribeiro
Articles in Law Reviews & Other Academic Journals
Current unprecedented levels of secrecy in civil discovery create significant negative externalities by preventing our adversary system from measuring up to the broad public goals that justify it. First, excessive discovery secrecy undermines the courts and the public’s ability to correct distortions of the truth-seeking function of the adversary system caused by excessive partisanship and confirmation bias. Second, it weakens the adversary system’s promotion of liberal democratic values, such as transparency and self-government. Third, it threatens the adversary system’s role in upholding human dignity, understood either as respect or status. To correct the negative externalities caused by excessive discovery secrecy, …
The Euclid Proviso, Ezra Rosser
The Euclid Proviso, Ezra Rosser
Articles in Law Reviews & Other Academic Journals
This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …
International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck
International Arbitration And Attorney-Client Privilege — A Conflict Of Laws Approach, Susan Franck
Articles in Law Reviews & Other Academic Journals
Privilege determinations in international arbitration are currently the equivalent of the “wild west,” with minimal predictability and massive pockets of tribunal discretion. Yet protecting privilege in international arbitration — when the same document or communications with lawyers that is protected by United States law may receive no protection under another law — is fundamental to safeguarding attorney-client relationships within a global environment, incentivizing procedural integrity of dispute resolution, and ensuring that justice is done. As it is not clear what law applies to privilege and client confidentiality (let alone how the law is determine), this Essay begins to bridge the …
Privacy And Security Across Borders, Jennifer Daskal
Privacy And Security Across Borders, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …
Immigration Unilateralism And American Ethnonationalism, Robert Tsai
Immigration Unilateralism And American Ethnonationalism, Robert Tsai
Articles in Law Reviews & Other Academic Journals
This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …
Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal
Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.
User-Generated Evidence, Rebecca Hamilton
User-Generated Evidence, Rebecca Hamilton
Articles in Law Reviews & Other Academic Journals
Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …
Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal
Notice And Standing In The Fourth Amendment: Searches Of Personal Data, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
In at least two recent cases, courts have rejected service providers' capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by …
Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal
Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Is Courtesy No Longer Contagious, David Spratt
Is Courtesy No Longer Contagious, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein
Panel 3: Chronic Pain, Psychogenic Pain, And Emotion, Robert Dinerstein
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt
Negotiator's Nook: The Ins And Outs Of Effective Negotiation, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Trial By Google: Judicial Notice In The Information Age, Andrew Ferguson
Trial By Google: Judicial Notice In The Information Age, Andrew Ferguson
Articles in Law Reviews & Other Academic Journals
This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that …
The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, Lia Epperson
The Promise And Pitfalls Of Empiricism In Educational Equality Jurisprudence, Lia Epperson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Modernizing Jury Instructions In The Age Of Social Media, David Aaronson, Sydney Patterson
Modernizing Jury Instructions In The Age Of Social Media, David Aaronson, Sydney Patterson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Giving Purpose To Your Life As A Legal Writer, David Spratt
Giving Purpose To Your Life As A Legal Writer, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Session One: Using Forensic Medical Evidence In Court, Juan E. Mendez
Session One: Using Forensic Medical Evidence In Court, Juan E. Mendez
Articles in Law Reviews & Other Academic Journals
No abstract provided.
A Punishing Court Docket, Stephen Wermiel
A Punishing Court Docket, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Reforming The State Secrets Privilege, Amanda Frost
Reforming The State Secrets Privilege, Amanda Frost
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Bosnia V. Serbia: Lessons From The Encounter Of The International Court Of Justice With The International Criminal Tribunal For The Former Yugoslavia, Rebecca Hamilton, Richard J. Goldstone
Bosnia V. Serbia: Lessons From The Encounter Of The International Court Of Justice With The International Criminal Tribunal For The Former Yugoslavia, Rebecca Hamilton, Richard J. Goldstone
Articles in Law Reviews & Other Academic Journals
This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ’s approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies.With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied …
More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt
More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Evidence Destroyed, Innocence Lost: The Preservation Of Biological Evidence Under Innocence Protection Statutes, Cynthia Jones
Evidence Destroyed, Innocence Lost: The Preservation Of Biological Evidence Under Innocence Protection Statutes, Cynthia Jones
Articles in Law Reviews & Other Academic Journals
No abstract provided.
The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru
The Central Park Five, The Scottsboro Boys, And The Myth Of The Bestial Black Man, N. Jeremi Duru
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Jaffee V. Redmond: Towards Recognition Of A Federal Counselor-Battered Woman Privilege, Fernando Laguarda, Michael B. Bressman
Jaffee V. Redmond: Towards Recognition Of A Federal Counselor-Battered Woman Privilege, Fernando Laguarda, Michael B. Bressman
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Grammarians At The Gate: The Rehnquist Court's Evolving Plain Meaning Approach To Bankruptcy Jurisprudence, Walter Effross
Grammarians At The Gate: The Rehnquist Court's Evolving Plain Meaning Approach To Bankruptcy Jurisprudence, Walter Effross
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Two Sherman Act Section 1 Dilemmas: Parallel Pricing, The Oligopoly Problem, And Contemporary Economic Theory, Jonathan Baker
Two Sherman Act Section 1 Dilemmas: Parallel Pricing, The Oligopoly Problem, And Contemporary Economic Theory, Jonathan Baker
Articles in Law Reviews & Other Academic Journals
No abstract provided.