Jurisprudence Commons^™

The Supreme Court’S Rationale In Capital Cases: A One Way Street?, Kimberly Bliss

Pace Law Review

No abstract provided.

A Call For Uniformity In Appellate Courts' Rules Regarding Citation Of Unpublished Opinions, Analisa Pratt

Golden Gate University Law Review

This Comment is divided into seven parts. Part I provides an overview of the current practice concerning citation of unpublished opinions, including a look at how unpublished opinions came into existence, the types of opinions currently published, and the courts' reasoning for limiting citation of unpublished opinions. Part II describes the variations on precedential value an opinion could receive and describes the no-citation rules by circuit. Part III discusses the debate between the Eighth and the Ninth Circuits - the two most vocal circuits on the issue of citability. Part IV deconstructs the reasoning behind no-citation rules. Part V examines …

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland

Law Faculty Publications

No abstract provided.

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

In The Trenches Of Florida’S War On Gangs: A Framework For Prosecuting Florida’S Anti-Gang Sentence Enhancement Provision, Rodrigo M. Caruço

Barry Law Review

This article discusses how the State of Florida prosecutes under the new sentence enhancement provision of Florida’s anti-gang statute. Part I discusses the general history of the provision. Part II analyzes different state approaches to the enhancement provision. Finally, Part III concludes the article with two recommendations. First, a statutory response that provides all courts in the State with clear direction to implement this provision. Second, a judicial approach for Florida courts to consistently implement a provision that is essential to Florida’s war on criminal gangs.

“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl

Barry Law Review

This paper will argue that, in the absence of effective alternatives, the new law granting court-martial jurisdiction over civilians is a necessary step in effectively controlling crimes by private contractors and other civilians accompanying U.S. armed forces overseas if other measures are not effectuated. Part II will look at two important Supreme Court decisions that currently restrict the military’s ability to court-martial civilians, and it will also highlight the government’s attempts over the past 50 years to come up with a solution to the problem. Part III will examine three alternatives to the amendment to Article 2(a)(10) that could make …

Addict First, Criminal Second – Addiction Fueled Crimes Should Be Ineligible For The Three-Strikes Penalty, Scott Lindquist

Barry Law Review

The author of this article argues that drug addicts who finance their addiction through crime should be ineligible to receive a prison sentence under a recidivist statute like the three-strikes penalty. Part I introduces the problem, addiction and crime among current prisoners reported by the Department of Justice. Part II discusses Gary Ewing, an addict, a criminal, and a third strike offender. The story of Gary Ewing represents the injustices levied upon an addict/criminal by enhanced sentenced statutes like the three-strikes penalty. Part III is a discussion of the history of repeat offender statutes, primarily focusing on the inception of …

Conspicuous Logic: Using The Logical Fallacy Of Affirming The Consequent As A Litigation Tool, Stephen M. Rice

Barry Law Review

This article will address one of the specific logical fallacies known as the Fallacy of Affirming the Consequent, discuss the place of formal logic in legal reasoning, describe the Fallacy of Affirming the Consequent, demonstrate how courts have explicitly used the fallacy in deciding cases, and detail how litigators can use the Fallacy to win cases.

Understanding Standing: A Process Of Evaluating Variables In Specific Situations, Diane M. Bales, John H. Reese

Diane M. Bales

This article is a comprehensive, multi-variable model for making standing analyses for federal courts. It is innovative in its comprehensive use of Supreme Court standing variables extracted from the Court’s opinions. Therefore, it is based on the jurisprudence of the Court and not on commentaries about the Court’s process of deciding issues of standing.

Book Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism By Alex M Cameron, Dianne Pothier

Dianne Pothier Collection

Alex Cameron’s book, Power Without Law, is a scathing critique of the Supreme Court of Canada’s 1999 decisions in R. v. Marshall upholding Donald Marshall Jr.’s Mi’kmaq treaty claim. Cameron’s book has attracted a lot of attention because of the author’s position as Crown counsel for the government of Nova Scotia. Cameron was not involved as a lawyer in the Marshall case itself. As a fisheries prosecution, Marshall was a matter of federal jurisdiction pursuant to s. 91(12) of the Constitution Act, 1867, 3 and Nova Scotia chose not to intervene. However, Cameron did become involved in a subsequent …

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee

College of Law - Faculty Scholarship

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010).

The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes.

Comparing law to the practice of common courtesy, the …

Pragmatic Indeterminacy, Anthony D'Amato

Faculty Working Papers

If, as a result of taking Indeterminacy seriously, we revolutionize the way we teach law and the way we select judges, then we will also revolutionize the way cases are litigated (because the new judges will expect to hear a different kind of argumentation) and the way people order their lives in anticipation of the way their disputes will be decided by these new judges.

Comment On Victor's Justice & The Viability Of Ex Ante Standards, 43 J. Marshall L. Rev. 569 (2010), Rod Rastan

UIC Law Review

No abstract provided.

The International Criminal Court And Proximity To The Scene Of The Crime: Does The Rome Statute Permit All Of The Icc's Trials To Take Place At Local Or Regional Chambers?, 43 J. Marshall L. Rev. 715 (2010), Stuart K. Ford

UIC Law Review

No abstract provided.

How Should The Icc Prosecutor Exercise His Or Her Discretion? The Role Of Fundamental Ethical Principles, 43 J. Marshall L. Rev. 553 (2010), Brian D. Lepard

UIC Law Review

No abstract provided.

International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals, 43 J. Marshall L. Rev. 603 (2010), Kenneth S. Gallant

UIC Law Review

No abstract provided.

Communication Indecency: Why The Communications Decency Act, And The Judicial Interpretation Of It, Has Led To A Lawless Internet In The Area Of Defamation, Colby Ferris

Barry Law Review

First, this article explores how law of defamation has been applied in the brick and mortar world, and how those same principles were applied to the cyber world. Next it looks at Congress’s legislation of defamation law on the Internet, and how that legislation has been applied in court. Finally, it evaluates the changing attitude toward that legislation, and changes Congress should consider making.

The 'Show' In The 'Show Trial': Contextualizing The Politicization Of The Courtroom, Awol K. Allo

Barry Law Review

Questioning the indifference of the law to its own normative correctness and its claim to legitimacy, this article explores the epistemological and ontological foundations upon which the concept and lexicon of show trial is predicated. By invoking the theory of performativity, the article distinguishes between the different models of show trials to allow for a more complex and nuanced reading of the particular nature of the show in judicial practices often called ‘show trials.’ By emphasizing the peculiarity of the ‘show’ in each ‘show trial’, the article seeks to reconceptualize the ambit of the criminal trial. Arguing against the emphasis …

Habeas Corpus In The Age Of Guantánamo, Cary Federman

Department of Justice Studies Faculty Scholarship and Creative Works

The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then, I …

The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity And War Crimes, 43 J. Marshall L. Rev. 603 (2010), Jordan J. Paust

UIC Law Review

No abstract provided.

The Nuremberg Tribunal V. The Tokyo Tribunal: Designs, Staffs, And Operations, 43 J. Marshall L. Rev. 753 (2010), Zachary D. Kaufman

UIC Law Review

No abstract provided.

Integration Matters: Rethinking The Architecture Of International Dispute Resolution, Anna Spain

Publications

International law promotes global peace and security by providing mechanisms for the pacific settlement of international disputes. This Article examines these mechanisms and their place in the architecture of the international dispute resolution ("IDR") system. The Article identifies three core deficiencies of the IDR system that limit its effectiveness and capacity. First, the international legal system has prioritized the development of adjudication over other forms of dispute resolution; the judicialization of international disputes and the proliferation of courts and tribunals evidence this. However, adjudication is limited in its capacity to resolve disputes that involve non-state parties and extra-legal issues. This …

Stare Decisis As Judicial Doctrine, Randy J. Kozel

Journal Articles

Stare decisis has been called many things, among them a principle of policy, a series of prudential and pragmatic considerations, and simply the preferred course. Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation’s highest doctrinal authority. A review of the Court’s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors …

A Foothold For Real Democracy In Eastern Europe, Elizabeth R. Sheyn

Vanderbilt Journal of Transnational Law

Ukraine has never had a criminal or civil jury trial despite the fact that the right to a criminal jury trial is guaranteed by Ukraine's Constitution. The lack of jury trials is one of the factors likely contributing to the corruption and deficiencies inherent in Ukraine's judicial system. This Article argues that Ukraine can and should make room for juries in its judicial system and proposes a framework for both criminal and civil jury trials. Although the use of juries will not remedy all of the problems plaguing Ukraine, it could bring the country closer to achieving a truly democratic …

Seeing Subtle Racism, Pat K. Chew

Articles

Traditional employment discrimination law does not offer remedies for subtle bias in the workplace. For instance, in empirical studies of racial harassment cases, plaintiffs are much more likely to be successful if they claim egregious and blatant racist incidents rather than more subtle examples of racial intimidation, humiliation, or exclusion. But some groundbreaking jurists are cognizant of the reality and harm of subtle bias - and are acknowledging them in their analysis in racial harassment cases. While not yet widely recognized, the jurists are nonetheless creating important precedents for a re-interpretation of racial harassment jurisprudence, and by extension, employment discrimination …

The Communications Decency Act And New York Times V. Sullivan: Providing Public Figure Defamation A Home On The Internet, 43 J. Marshall L. Rev. 491 (2010), Chris Williams

UIC Law Review

No abstract provided.

The International Criminal Court: From Rome To Kampala, 43 J. Marshall L. Rev. 515 (2010), Philippe Kirsch

UIC Law Review

No abstract provided.

In God We Trust: The Judicial Establishment Of American Civil Religion, 43 J. Marshall L. Rev. 869 (2010), James J. Knicely, John W. Whitehead

UIC Law Review

No abstract provided.