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Faculty Scholarship Series

Legal History

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Full-Text Articles in Legal History

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum May 2009

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Faculty Scholarship Series

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


Manson V. Brathwaite Revisited:Towards A New Rule Of Decision For Due Process Challenges, Giovanna Shay, Timothy O'Toole Mar 2006

Manson V. Brathwaite Revisited:Towards A New Rule Of Decision For Due Process Challenges, Giovanna Shay, Timothy O'Toole

Faculty Scholarship Series

A major cause of wrongful convictions is mistaken eyewitness identification. The leading Supreme Court case governing due process challenges to identification procedures, Manson v. Brathwaite, is almost 30 years old, and does not account for decades of social science research on eyewitness I.D. In fact, parts of the Manson test designed to ensure reliability run counter to research findings. In this piece, O'Toole and Shay describe the problems with the Manson test, and propose a new rule of decision for due process challenges to identification procedures.


The Origins Of "Reasonable Doubt", James Q. Whitman Mar 2005

The Origins Of "Reasonable Doubt", James Q. Whitman

Faculty Scholarship Series

The "reasonable doubt" rule is notoriously difficult to define, and many judges and scholars have deplored the confusion it creates in the minds of jurors. Yet "reasonable doubt" is regarded as a fundamental part of our law. How can a rule of such fundamental importance be so difficult to define and understand?

The answer, this paper tries to show, lies in history. The "reasonable doubt" rule was not originally designed to serve the purpose it is asked to serve today: It was not originally designed to protect the accused. Instead, it was designed to protect the souls of the jurors ...