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2010

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Articles 1 - 30 of 41

Full-Text Articles in Jurisprudence

The Supreme Court’S Rationale In Capital Cases: A One Way Street?, Kimberly Bliss Nov 2010

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A Call For Uniformity In Appellate Courts' Rules Regarding Citation Of Unpublished Opinions, Analisa Pratt Oct 2010

A Call For Uniformity In Appellate Courts' Rules Regarding Citation Of Unpublished Opinions, Analisa Pratt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 Part I provides an overview of the current practice concerning citation of unpublished opinions, including a look at how unpublished opinions came into existence, the types of opinions currently published, and the courts' reasoning for limiting citation of unpublished opinions.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 ...


The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf Oct 2010

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 Sep 2010

“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 ...


Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder Sep 2010

Expounding The Law: Law And Judicial Duty, Mary Sarah Bilder

Boston College Law School Faculty Papers

Written as a comment on Philip Hamburger's book, Law and Judicial Duty, this essay explains why the history of judicial review remains a difficult area for scholarship. American judicial tradition espoused that judges had an obligation to declare as void laws repugnant to the constitution. The essay suggests that the source of this duty, as well as the meaning of both the constitution and laws of the land, changed over time. The essay proposes that scholars perceived American judicial review as problematic only when this tradition conflicted with an increasingly rigid belief in separation of powers. The essay concludes ...


Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert Aug 2010

Standing In Barack Obama's Shoes: Evaluating The President's Jurisprudence Of Empathy In Light Of James Wilson's Jurisprudence Of “Common Sense”, John Rollert

Student Scholarship Papers

This article explains what President Barack Obama meant when he called empathy an “essential ingredient” in judicial decision making and, thus, the outstanding quality he would look for in his Supreme Court nominees. It also provides a comparative study between Obama’s jurisprudence of empathy and Justice James Wilson’s jurisprudence of common sense in order to illustrate the dangers of deciding difficult Supreme Court cases with recourse to unconventional, extra-legal tools.


Pragmatic Indeterminacy, Anthony D'Amato Jan 2010

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.


Understanding Standing: A Process Of Evaluating Variables In Specific Situations, Diane M. Bales, John H. Reese Jan 2010

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.


Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland Jan 2010

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

Law Faculty Publications

No abstract provided.


Prevention And Complementarity In The International Criminal Court: A Positive Approach, Katharine A. Marshall Jan 2010

Prevention And Complementarity In The International Criminal Court: A Positive Approach, Katharine A. Marshall

Human Rights Brief

No abstract provided.


All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies And The Rule Of Law, Keith J. Bybee Jan 2010

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 'Show' In The 'Show Trial': Contextualizing The Politicization Of The Courtroom, Awol K. Allo Jan 2010

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 ...


Local Rules In The Wake Of Federal Rule Of Appellate Procedure 32.1, David R. Cleveland Jan 2010

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

Law Faculty Publications

No abstract provided.


Addict First, Criminal Second – Addiction Fueled Crimes Should Be Ineligible For The Three-Strikes Penalty, Scott Lindquist Jan 2010

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 ...


Conspicuous Logic: Using The Logical Fallacy Of Affirming The Consequent As A Litigation Tool, Stephen M. Rice Jan 2010

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.


“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl Jan 2010

“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 ...


In The Trenches Of Florida’S War On Gangs: A Framework For Prosecuting Florida’S Anti-Gang Sentence Enhancement Provision, Rodrigo M. Caruço Jan 2010

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.


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 Jan 2010

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.


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 Jan 2010

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

The John Marshall Law Review

No abstract provided.


The Hobbs Act Through The Rivera-Rivera Looking Glass: A Mere Intrusion Upon Basic Fundamental Federalism Principles?, 44 J. Marshall L. Rev. 237 (2010), Patrick Goodwin Jan 2010

The Hobbs Act Through The Rivera-Rivera Looking Glass: A Mere Intrusion Upon Basic Fundamental Federalism Principles?, 44 J. Marshall L. Rev. 237 (2010), Patrick Goodwin

The John Marshall Law Review

No abstract provided.


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 Jan 2010

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

The John Marshall Law Review

No abstract provided.


The Dual Foundation Of Universal Jurisdiction: Towards A Jurisprudence For The ‘Court Of Critique’, Itamar Mann Jan 2010

The Dual Foundation Of Universal Jurisdiction: Towards A Jurisprudence For The ‘Court Of Critique’, Itamar Mann

Student Scholarship Papers

This article revisits the case of The State of Israel v Adolph Eichmann and calls for renewed attention to the analysis of universal jurisdiction in this early example of it. Precisely because the Israeli court’s notion of universal jurisdiction is foreign to contemporary readers, it provides fresh guidance on a doctrine that has recently gained enormous importance in global politics. The Eichmann Opinion suggests a two-tiered test: among the cases satisfying the traditional conditions for universal jurisdiction, only those cases in which there is a political interest in pressing charges should be selected. As a world court with universal ...


Constitutional Constructions And Constitutional Decision Rules: Thoughts On The Carving Of Implementation Space, Mitchell N. Berman Jan 2010

Constitutional Constructions And Constitutional Decision Rules: Thoughts On The Carving Of Implementation Space, Mitchell N. Berman

Faculty Scholarship at Penn Law

No abstract provided.


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

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

The John Marshall 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 Jan 2010

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

The John Marshall Law Review

No abstract provided.


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

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

The John Marshall Law Review

No abstract provided.


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 Jan 2010

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

The John Marshall Law Review

No abstract provided.


How To Avoid The Constraints Of Rule 10b-5(B): A First Circuit Guide For Underwriters, 43 J. Marshall L. Rev. 931 (2010), Eric H. Franklin Jan 2010

How To Avoid The Constraints Of Rule 10b-5(B): A First Circuit Guide For Underwriters, 43 J. Marshall L. Rev. 931 (2010), Eric H. Franklin

The John Marshall 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 Jan 2010

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

The John Marshall Law Review

No abstract provided.


Second-Class Citizenship: The Tension Between The Supremacy Of The People And Minority Rights, 43 J. Marshall L. Rev. 963 (2010), Adam H. Morse Jan 2010

Second-Class Citizenship: The Tension Between The Supremacy Of The People And Minority Rights, 43 J. Marshall L. Rev. 963 (2010), Adam H. Morse

The John Marshall Law Review

No abstract provided.