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The Requirement Of An Investigator In Public And Private Practice, Robert M. Sanger 2009 Santa Barbara College of Law

The Requirement Of An Investigator In Public And Private Practice, Robert M. Sanger

Robert M. Sanger

Trial lawyers do everything we can to avoid IAC and support the requirements of the Sixth Amendment to the United States Constitution which provides that the accused has a right to counsel -- counsel that is not only present but also effective. Under Ake v. Oklahoma , the United States Supreme Court stated that the right includes the right to have experts and investigators. Since Ake, there has been much litigation, particularly in capital cases, regarding the right to have the use of such experts to do an effective job.  

The California courts have made it clear that the right to the ...


Subconstitutionalism, Tom Ginsburg, Eric A. Posner 2009 University of Chicago

Subconstitutionalism, Tom Ginsburg, Eric A. Posner

Tom Ginsburg

No abstract provided.


Modern American Supreme Court Judicial Methodology And Its Origins: A Critical Analysis Of The Legal Thought Of Roscoe Pound, Beau James Brock 2009 Selected Works

Modern American Supreme Court Judicial Methodology And Its Origins: A Critical Analysis Of The Legal Thought Of Roscoe Pound, Beau James Brock

Beau James Brock

Roscoe Pound’s struggle for social justice has left an indelible mark on our judiciary and idea of law. One may ask, when did adhesive strips become “Band-aids?” When did tissues become “Kleenex?” And finally, when did Roscoe Pound’s weighing and balancing of interests and policy-made law become so ingrained into our legal tradition that we no longer recognize his genius for providing it to us? His influence on our perception of law is without equal. Society does not look to metaphysical absolutes as expressions of law anymore. We are constantly balancing and adjusting competing interests through legislation and ...


Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy 10 Years After Bisexual Erasure, Heron Greenesmith 2009 American University, Washington College of Law

Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy 10 Years After Bisexual Erasure, Heron Greenesmith

Heron Greenesmith

In 2000, Kenji Yoshino published a paper exploring the social erasure of bisexuality. He introduces the paper by empirically proving that bisexuality was invisible through a quick survey of popular news sources that featured volumes more articles about homosexuality than bisexuality. Once he shows that bisexuality is invisible, he makes sure to distinguish between the incidental invisibility of bisexuality, perhaps because of the low number of bisexuals, and its deliberate erasure. Erasure is a deliberate act that involves the participation of people who seek to erase. Yoshino theorizes that monosexuals (heterosexuals and homosexuals) created an epistemic contract to erase bisexuality ...


Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum 2009 WIlliam S. Boyd School of Law, UNLV

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

Ian C Bartrum

This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction”. I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a “true and correct” model of constitutional ...


When Individuals Seek Death At The Hands Of The Police: Analyzing The Legal And Policy Implications Of Suicide-By-Cop And Why Police Office Should Use Nonlethal Force In Dealing With Suicidal Suspects, Rahi Azizi 2009 University of California, Berkeley

When Individuals Seek Death At The Hands Of The Police: Analyzing The Legal And Policy Implications Of Suicide-By-Cop And Why Police Office Should Use Nonlethal Force In Dealing With Suicidal Suspects, Rahi Azizi

Rahi Azizi

The term “suicide-by-cop” refers to incidents in which a suicidal person intentionally goads the police into killing him because he is unwilling to take his own life. Many journalists have written newspaper articles on suicide-by-cop, but legal literature on this unique category of police killings remains scarce. This article hopes to change that. Part of my purpose is to examine suicide-by-cop from a sociological standpoint and determine its prevalence, particularly within lower income communities. But my purpose does not stop there. I make two principle arguments. First, suicide-by-cop poses a tangible threat of litigation to police departments. Because suicide-by-cop incidents ...


Evolving Away From Evolving Standards Of Decency, John F. Stinneford 2009 University of Florida Levin College of Law

Evolving Away From Evolving Standards Of Decency, John F. Stinneford

John F. Stinneford

No abstract provided.


Infiltrating American Intelligence-Difficulties Inherent In The Congressional Oversight Of Intelligence And The Joint Committee Model, Patrick J. Donaldson 2009 American University, Washington College of Law

Infiltrating American Intelligence-Difficulties Inherent In The Congressional Oversight Of Intelligence And The Joint Committee Model, Patrick J. Donaldson

Patrick J. Donaldson

The structure of intelligence oversight has been debated recently as the need is seen to grow. The current structure of intelligence oversight has been rendered ineffective by partisanship and lack of area expertise. Reform of congressional oversight has proven itself necessary. There have been numerous and varied proposals on how to reform the intelligence community in recent years. However, the 9/11 Commission’s use of a single, joint committee like the Joint Committee on Atomic Energy would not function as effectively as similar examples in the past. Regardless, every proposal of the 9/11 Commission has been addressed in ...


Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky 2009 University of Maryland Francis King Carey School of Law

Death, Ineligibility And Habeas Corpus, Lee B. Kovarsky

Lee Kovarsky

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces ...


Transparencia Y Leyes Secretas En Chile, Pablo Contreras 2009 Universidad Alberto Hurtado

Transparencia Y Leyes Secretas En Chile, Pablo Contreras

Pablo Contreras

El autor analiza el problema de constitucionalidad de las leyes secretas en Chile, en razón de las modificaciones introducidas a la Constitución en el 2005. Primero, describe brevemente el fundamento sobre la publicidad de la ley en el Estado Democrático. Luego, se analiza el nuevo principio constitucional de publicidad establecido en el artículo 8 de la Constitución. Adicionalmente, se examina la constitucionalidad de las leyes secretas desde dos puntos de vista: confrontando la compatibilidad con el principio general de transparencia –como base de la institucionalidad– y analizando la afectación en el contenido esencial del derecho fundamental de acceso a la ...


Árbol Genealógico Del Consejo De Estado: El Constitucionalismo Autoritario En Nuestra Historia, Fernando Muñoz 2009 Universidad Austral de Chile

Árbol Genealógico Del Consejo De Estado: El Constitucionalismo Autoritario En Nuestra Historia, Fernando Muñoz

Fernando Muñoz

An appeal to prestige and experience creates a historical continuity between various institutions: the Royal Audiencia, the Council of State, and the “institutional” and for-life senators. This work focuses on the discourse that articulates and unifies these various institutional forms throughout Chilean history, suggesting a context for the study of Chilean constitutional authoritarianism.


No Good Deed Goes Unpublished: Precedent-Stripping And The Need For A New Prophylactic Rule, Edward Cantu 2009 n/a

No Good Deed Goes Unpublished: Precedent-Stripping And The Need For A New Prophylactic Rule, Edward Cantu

Edward Cantu

This paper addresses the “open secret” that federal appellate courts often strip their opinions of precedential value as a means to forgo fair, principled and/or thorough adjudication of issues raised in appeals. Is there a basis in contemporary constitutional doctrine for a presumption that appellants suffer constitutional injury when courts dispose of their appeals using non-precedential opinions? The author answers “yes.” The argument centers on case law establishing so-called “constitutional prophylactic rules,” which work to “overprotect” a given core right—that is, to create a presumption of constitutional injury without proof of it—when such is the only effective ...


Antecedent Law: The Law Of People Making, Carter Dillard 2009 Emory University

Antecedent Law: The Law Of People Making, Carter Dillard

Carter Dillard

In our conception of law we have largely presumed the process by which the people whose behavior the law is meant to regulate come to be present and susceptible to the law's influence. As a result, that process is largely outside of our account of the law, and any role the law might have over the matter is relatively ignored. This article introduces a simple and concrete conceptual device, a form of law called antecedent law, which seeks to undo this presumption and refocus our attention on that which can determine the presence of persons in the polity and ...


Insulating The Constitution: Yong Vui Kong V. Public Prosecutor [2010] Sgca 20, Aravind Ganesh 2009 Université Catholique de Louvain

Insulating The Constitution: Yong Vui Kong V. Public Prosecutor [2010] Sgca 20, Aravind Ganesh

Aravind Ganesh

In May 2010, the Singapore Court of Appeal upheld the constitutionality of the mandatory death penalty in Yong Vui Kong v PP. This article does not deal with the propriety of mandatory death penalty laws, or of the death penalty broadly, but instead focuses on two novel pronouncements by the Court of Appeal. First, that customary international law not only has no legal validity in the domestic Singaporean legal sphere, but that it is also not to be treated as automatically incorporated into Singapore common law. Instead, a rule of customary international law can become part of Singapore law only ...


State Extraterritorial Powers Reconsidered, Mark D. Rosen 2009 Selected Works

State Extraterritorial Powers Reconsidered, Mark D. Rosen

Mark D. Rosen

No abstract provided.


Fundamental Social Rights, Social Security And The Costs Of Social Rights: Brazilian Cases, carlos luiz strapazzon 2009 Western University of Santa Catarina State (UNOESC); University Positivo School of Law

Fundamental Social Rights, Social Security And The Costs Of Social Rights: Brazilian Cases, Carlos Luiz Strapazzon

Carlos Luiz Strapazzon

Brazilian Courts, in order to guarantee social rights, should take into account the scarcity of resources and the principle of equality so as not favoring anyone with features that are intended for everyone. Given this limitation, how the Judicial Power might act with respect to the realization of social rights? It has down increased attention how, in Brazil, the Judicial Power, especially the Supreme Court and the Superior Court, have interfered in Executive discretion so as to protect social rights, as health rights or educational rights. This article aims to explain how it occurs in Brazil and verify, on the ...


Curbing Rent-Seeking And Inefficiency With Broad Takings Powers And Undercompensation: The Case Of Singapore From A Givings Perspective, Jianlin Chen 2009 University of Chicago

Curbing Rent-Seeking And Inefficiency With Broad Takings Powers And Undercompensation: The Case Of Singapore From A Givings Perspective, Jianlin Chen

Jianlin Chen

Conventional discourses on the perils of weak property rights vis-à-vis government takings have failed to account for and respond to the rent-seeking and inefficiency problems of government actions. Singapore, with its broad takings powers, coupled with express undercompensation, has not suffered from the predicted widespread rent-seeking and inefficiency. This case study of Singapore from a givings perspective demonstrates the importance of imposing a fair charge on the various kinds of givings in curbing rent-seeking and inefficiency. There are also additional benefits of having a healthy fiscal budget and more equitable taxation arising from Singapore's givings regime. The key normative ...


Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden 2009 Florida Coastal School of Law

Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden

Stephen Durden

Justice Scalia proclaims homage to the “dead” Constitution. Justice Brennan honors the “living” Constitution. Others believe in “a partially living and partially dead Constitution.” But, whichever moniker selected, constitutional analysis remains (to the interpreter) personal; however, personal does not necessarily mean irrational or even singular (i.e., that no one else agrees with the interpretation). Rather, personal means that no matter how narrow the interpretational method, an interpreter of the Constitution inevitably makes personal choices when using any interpretational method - choices not required by, or perhaps even inconsistent with, the chosen interpretational method. This Article uses canons of construction to ...


A Typology Of Economic And Social Rights Adjudication: Exploring The Catalytic Function Of Judicial Review, Katharine G. Young 2009 Boston College Law School

A Typology Of Economic And Social Rights Adjudication: Exploring The Catalytic Function Of Judicial Review, Katharine G. Young

Katharine G. Young

The tensions that are often thought to lie between democracy and constitutionalism are especially pronounced with respect to the entrenchment of economic and social rights. Within current understandings of judicial review, courts appear to lack the competency, and the legitimacy, for economic and social rights adjudication. In this article, I draw on the South African Constitutional Court’s experience with justiciable economic and social rights, to present a typology of judicial review, which incorporates deferential, conversational, experimentalist, managerial and peremptory stances. I suggest that these five stances are part of a general judicial role conception which I term catalytic, because ...


The One And Only Substantive Due Process Clause, Ryan C. Williams 2009 Selected Works

The One And Only Substantive Due Process Clause, Ryan C. Williams

Ryan Williams

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well. An important though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive due process ...


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