Law Commons^™

The International Law Of The Environment From The U.S. Perspective: A Case Study: The U.S. And Mexico, Robert Summers

Faculty Articles

The subject of public international law is vast, rich and varied, thus offering the potential to explore many interrelated topics ranging from the lofty philosophical precepts of positivist and naturalist thought to the technical intricacies of international business transactions. Many of these topics are also historically relevant to the long and often inclement history of Mexican-U.S. relations. These include the law of war, peace and neutrality, self-determination, territory, recognition, and diplomatic and consular privileges and immunities. Regrettably, the allotment of time and space for the subject of public international law in the Joint Venture Program does not allow discourse on …

Progress Is Our Only Product: Legal Reform And The Codification Of Evidence, Michael S. Ariens

Faculty Articles

Twentieth century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a "rational" resolution of disputes.

Morgan’s decision to emphasize the rational resolution of disputes …

The Twenty-Fifth Anniversary Of My Lai: A Time To Inculcate The Lessons, Jeffrey F. Addicott, William A. Hudson Jr

Faculty Articles

The spring of 1993 marks the twenty-fifth anniversary of the My Lai massacre and is an appropriate time to reinforce the lessons learned from the event. Each and every grave breach of the law of war represents a horrible scar on the credibility of the American military, as well as the civilized democracy it protects. In this context, My Lai stands as the greatest emblem of American military shame in the twentieth century. Nothing provides a greater vehicle for inculcating the necessity for strict adherence to the law of war than the lessons from the massacre at My Lai.

While …

Operation Desert Storm, R. E. Lee Or W. T. Sherman?, Jeffrey F. Addicott

Faculty Articles

History has shown that one of the most important elements in a successful combat operation is the quality of the commander. The success of Operation Desert Storm confirmed that American commander, General Norman Schwarzkopf, was no mediocre leader. By extension, the war also paid tribute, albeit a silent one, to a man who is arguably the greatest military leader the United States has ever produced—Robert E. Lee. Not only in the sphere of battlefield tactics, but also in ensuring strict adherence to the laws regulating warfare, Generals Lee and Schwarzkopf had much in common.

Unfortunately, however, many are unaware of …

Codification Of The “Special Forces Exception”, Jeffrey F. Addicott

Faculty Articles

For the past eight years, Army Special Forces units have conducted training and operations with friendly foreign forces outside the United States. The Army has obtained funding for these operations under what has been termed the “Special Forces exception” to a 1986 General Accounting Office (GAO) opinion regarding permissible funds appropriations for foreign exercises.

With the passage of the National Defense Authorization Act for Fiscal Years 1992–1993, Congress has finally codified the Special Forces exception. Subject to a guiding principle regarding the purpose of operations, the commander of Special Operations Command and select others may draw on the Department of …

Why D’Oench, Duhme? An Economic, Legal, And Philosophical Critique Of A Failed Bank Policy, Richard E. Flint

Faculty Articles

In 1942, the Supreme Court handed down its decision in the case of D’Oench, Duhme, & Co. c. FDIC. This decision established an equitable estoppel under the umbrella of federal common law to protect the insurance fund of the Federal Deposit Insurance Corporation (FDIC) from secret agreements between borrowers and banks which misrepresented the value of a bank’s assets.

In the last fifty years, the D’Oench doctrine has been greatly expanded by the courts, and its purported legislative counterpart, 12 U.S.C. Section 1823(e) has enjoyed similar expansion. More recently, courts have even created a fiction by holding that the FDIC …

Judicial Bias, The Insurance Industry And Consumer Protection: An Empirical Analysis Of State Supreme Courts’ Bad-Faith, Breach-Of-Contract, Breach-Of-Covenant-Of-Good-Faith And Excess-Judgment Decisions, 1900–1991, Willy E. Rice

Faculty Articles

Consumers are becoming increasingly dissatisfied with the services and products that the American insurance industry provides. Correspondingly, they are filing an ever-increasing number of lawsuits against insurers in state courts. While courts have ruled equally in favor of insurers and policyholders, advocates for both consumers and the insurance industry strongly believe “judicial bias” or “judicial hostility” permeates state supreme courts.

Some United States Supreme Court Justices have argued that state supreme courts are hostile towards insurance carriers. Commentators have also viciously criticized state supreme courts for being biased against insurance carriers. The contrary view that state supreme courts are anti-consumer …

When “Special Needs” Meet Probable Cause: Denying The Devil Benefit Of Law, Gerald S. Reamey

Faculty Articles

Removing laws to pursue the lawbreaker may be well intentioned, but the result is that society is susceptible to the evils those laws protect against. The traditional Fourth Amendment safeguards--probable cause and warrants--have been abandoned due to the development of a reasonableness standard because of the presence of “special needs” that were used to justify searches. The adoption of this alternative approach to Fourth Amendment interpretation was signalled by the truly landmark case of Terry v. Ohio.

By adopting the “reasonableness” analysis, the Supreme Court altered the impact of the exclusionary rule without directly modifying the rule. After Griffin v. …

The Law Of Evidence And The Idea Of Progress, Michael S. Ariens

Faculty Articles

To ask the question, “Does evidence law matter?,” is often to assume that some sets or groups of people believe it is important while others are challenging that view. However, another assumption regarding the nature of this question is possible—that the question is asked because legal academics believe that evidence law both does and does not matter, and that those academics also believe that these are irreconcilable beliefs. What is of particular interest is how legal academics reached this point and why they believe that evidence law both does and does not matter.

Consideration of these aspects of evidence law …

St. Mary's University School Of Law Annual Report 1992-1993, St. Mary's University School Of Law

Dean’s Report

No abstract provided.

Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey

Faculty Articles

When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur. …

Modern Legal Times: Making A Professional Legal Culture, Michael S. Ariens

Faculty Articles

Lawyers’ belief in their professionalism was fostered by the creation and development of modern legal institutions. Law schools, bar associations, organizations like the American Law Institute, as well as the system of legal directories, the regional case reporter system, and continuing legal education groups all contributed greatly to the making of a distinctly professional culture of law in America. These institutions prospered in part because of their ideological fit with the professionalizing ethos embodied in Christopher Columbus Langdell’s statement that “law is a science.”

Legal institutions, then, must be evaluated through the ideological lens which encouraged and fostered the notion …

Evidence Of Religion And The Religion Of Evidence, Michael S. Ariens

Faculty Articles

When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim. Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good. However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional. In light of this inherent difficulty of evidence of religion, …

The Lessons Of My Lai, Jeffrey F. Addicott

Faculty Articles

The spring of 1993 marks the twenty-fifth anniversary of the My Lai Massacre. As such, it is an appropriate time to seriously revisit the event and to reinforce the lessons learned. The antithesis of the conduct of the United States Military in the Gulf War, My Lai echoes back to a nightmarish event that most Americans would like to forget. But My Lai must never be forgotten.

To a large degree, from Grenada (1983) to Panama (1989) to the Gulf War (1991), the United States Military can take full credit for a commendable record in its adherence to the law …