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Articles 1 - 7 of 7
Full-Text Articles in Legal History
Proportionalities, Youngjae Lee
Proportionalities, Youngjae Lee
Notre Dame Law Review Reflection
“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …
Rejoining Moral Culpability With Criminal Liability: Reconsideration Of The Felony Murder Doctrine For The Current Time, William Bald
Rejoining Moral Culpability With Criminal Liability: Reconsideration Of The Felony Murder Doctrine For The Current Time, William Bald
Journal of Legislation
No abstract provided.
Preclusion And Criminal Judgment, Lee Kovarsky
Preclusion And Criminal Judgment, Lee Kovarsky
Notre Dame Law Review
The defining question in modern habeas corpus law involves the finality
of a state conviction: What preclusive effect does (and should) a criminal
judgment have? Res judicata and collateral estoppel —the famous preclusion
rules for civil judgments—accommodate basic legal interests in fairness,
certitude, and sovereignty. Legal institutions carefully calibrate the preclusive
effect of civil judgments because judicial resources are scarce, because
the reliability and legitimacy of prior process can vary, and because courts
wield the authority of a repeat-playing sovereign that will find its own civil
judgments attacked in foreign litigation. In stark contrast to the legal sophistication
lavished on …
Beyond Law And Fact: Jury Evaluation Of Law Enforcement, Lauren M. Ouziel
Beyond Law And Fact: Jury Evaluation Of Law Enforcement, Lauren M. Ouziel
Notre Dame Law Review
Criminal trials today are as much about the adequacy and legitimacy of the defendant’s accusers—police and prosecutors—as the alleged deeds of the accused. Yet we lack theory to conceptualize this reality, doctrine to set its parameters, and institutional mechanisms to adapt to it. The traditional framework used by courts and scholars to delineate the jury’s role—along the continuum between “fact-finding” and “law-finding”—is inadequate to the task. Jury evaluations of law enforcement are more accurately conceptualized as enforcement-finding, a process that functions both in and outside that continuum. In considering enforcement-finding’s justification and proper scope, history offers a useful analytical frame. …
A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler
A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler
Notre Dame Law Review
In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion of how …
The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia
The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia
Journal Articles
Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …
Proposed Legislation For Enforcement Of Prohibition, Thomas Frank Konop
Proposed Legislation For Enforcement Of Prohibition, Thomas Frank Konop
Journal Articles
Under date of November 21st, 1929, the Commission on Law Observance and Enforcement made a preliminary report to the President on observance and enforcement of prohibition. Under subdivision (D) of that report, the Commission offered three methods to relieve the congestion in the Federal Courts. Although the bills are constitutional, they will not relieve congestion. Instead, the will promote fraud and lower citizens' respect for the Federal Judiciary and the Constitution.