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Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe
Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe
Cornell Law Faculty Publications
This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.
In Defense Of Noncapital Habeas: A Response To Hoffmann And King, John H. Blume, Sheri Lynn Johnson, Keir M. Weyble
In Defense Of Noncapital Habeas: A Response To Hoffmann And King, John H. Blume, Sheri Lynn Johnson, Keir M. Weyble
Cornell Law Faculty Publications
For decades, federal habeas corpus review of state court judgments has generated wide-ranging, sometimes heated, debate among judges, policymakers, and scholars. In their 2009 Essay, Rethinking the Federal Role in State Criminal Justice, Professors Joseph L. Hoffmann and Nancy J. King added their voices to the exchange, contending that federal habeas corpus review of noncapital state court convictions and sentences should, with narrow exceptions, be abolished. They contend that the expenditure of money, time, and effort necessary to provide review in such cases is no longer justifiable and that those resources should be redirected to creating a federal initiative for …
Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson
Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson
Cornell Law Faculty Publications
The evidence of modern bias is often difficult to document and, even when documented, still capable of racially neutral interpretations. In contrast, the use of racial epithets is neither subtle nor ambiguous. Prior to the research that generated this article and our representation of two clients whose cases involved racial epithets, we would have assumed that the use of a racial epithet by a decision-maker in a criminal trial would be rare, but that assumption turns out to be wrong. We also would have assumed that the use of an epithet by any of the decision makers would lead to …
Reconsidering Trials In Absentia At The Special Tribunal For Lebanon: An Application Of The Tribunal's Early Jurisprudence, Maggie Gardner
Reconsidering Trials In Absentia At The Special Tribunal For Lebanon: An Application Of The Tribunal's Early Jurisprudence, Maggie Gardner
Cornell Law Faculty Publications
Since Nuremburg, no individual has been prosecuted in an international or internationalized court entirely in his or her absence. That may soon change. The Special Tribunal for Lebanon, which is empowered to try defendants in absentia, has now confirmed its first indictment. While its trial in absentia procedures were met with concern and criticism from some quarters when they were first announced, reconsideration is warranted in light of subsequent judicial developments. The judges of the Special Tribunal for Lebanon have now established in their preliminary decisions an interpretive approach to the Tribunal’s Statute that is adamantly purposive. This purposive approach …