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Finding Law, Stephen E. Sachs 2019 Duke Law School

Finding Law, Stephen E. Sachs

Faculty Scholarship

That the judge's task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by judges is commonly dismissed -- as a "fallacy," an "illusion," a "brooding omnipresence in the sky." That dismissive view is wrong. Expecting judges to find unwritten law is no childish fiction of the benighted past, but a real and plausible option for a modern legal system.

This Essay seeks to restore the respectability of finding law, in part by responding to two criticisms made by Erie and ...


Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown 2018 Southern Center for Human Rights

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea ...


The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman 2018 American Civil Liberties Union

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting ...


The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole McCartney, Emmanuel N. Amoako 2018 Northumbria Law School

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers ...


Does Judicial Courage Exist, And If So, Is It Necessary In A Democracy?, The Honourable Luc Martineau 2018 Federal Court of Canada

Does Judicial Courage Exist, And If So, Is It Necessary In A Democracy?, The Honourable Luc Martineau

Western Journal of Legal Studies

Jurists are trained to value the rule of law and judges are expected to uphold same whatever the circumstances. Separation of powers controls interactions of the legislative, executive and judicial branches, creating potential for friction where the legality or legitimacy of state action is at stake. The real test of judicial independence comes in situations of crisis. Judges are not professional philosophers or politicians. Still, on a day to day basis, judges are called upon to make tough decisions that have dire consequences on a human level, which undoubtedly engages a judge’s conscience. Changing values shape the face of ...


Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters 2018 University of Pennsylvania Law School

Anthony Kennedy: A Most Principled Justice, Mitchell N. Berman, David Peters

Faculty Scholarship

After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in ...


Essay: Insiders, Outsiders, & Fair Access: Identifying Culpable Insider Trading, Jonathan D. Glater 2018 Brooklyn Law School

Essay: Insiders, Outsiders, & Fair Access: Identifying Culpable Insider Trading, Jonathan D. Glater

Brooklyn Law Review

The Supreme Court’s insider trading doctrine has become increasingly convoluted as each effort to cope with novel fact patterns results in a new rule not tethered to principled understanding of the nature of the wrong committed. That this is not a terribly controversial claim is evidence of how far the Court’s jurisprudence has drifted. This essay proposes that the early error was abandonment of concern for third parties who trade on exchanges but who do not enjoy legal access to information possessed by insiders or tippees who receive information from insiders. The Court’s error, the essay contends ...


The Context Of Violence: The Lautenberg Amendment & Interpretive Issues In The Gun Control Act, Rachel B. Polan 2018 Brooklyn Law School

The Context Of Violence: The Lautenberg Amendment & Interpretive Issues In The Gun Control Act, Rachel B. Polan

Brooklyn Law Review

Few areas of the law are as hotly debated as gun control, or as universally condemned as domestic violence – and the Supreme Court’s decisions on the Lautenberg Amendment address both. An amendment to the Gun Control Act, it prohibits persons convicted of a misdemeanor crime of domestic violence from owning a firearm. The amendment qualifies a predicate conviction as one that has a “force clause” as an element. In particular, while looking at the force in domestic violence, the Supreme Court has acknowledged that one must also look to context: a “squeeze of an arm” of an intimate partner ...


The Revision Of Article 2: Commercial Sellers Vs. Consumer Buyers Appendix, James J. White 2018 Barry University School of Law

The Revision Of Article 2: Commercial Sellers Vs. Consumer Buyers Appendix, James J. White

Barry Law Review

No abstract provided.


Uniform Commercial Code Article Two Revisions: The View Of The Trenches, Henry Gabriel 2018 Barry University School of Law

Uniform Commercial Code Article Two Revisions: The View Of The Trenches, Henry Gabriel

Barry Law Review

No abstract provided.


Article 2 Of The Ucc: Some Thoughts On Success Or Failure In The Twenty-First Century, Robert A. Hillman 2018 Barry University School of Law

Article 2 Of The Ucc: Some Thoughts On Success Or Failure In The Twenty-First Century, Robert A. Hillman

Barry Law Review

No abstract provided.


The Myth Of Trade Usages: A Talk, Lisa Bernstein 2018 Barry University School of Law

The Myth Of Trade Usages: A Talk, Lisa Bernstein

Barry Law Review

No abstract provided.


The Revision Of Article 2: Commercial Sellers Vs. Consumer Buyers, James J. White 2018 Barry University School of Law

The Revision Of Article 2: Commercial Sellers Vs. Consumer Buyers, James J. White

Barry Law Review

No abstract provided.


Foreword, Leticia Diaz 2018 Barry University School of Law

Foreword, Leticia Diaz

Barry Law Review

No abstract provided.


Remedies In The Ucc: Some Critical Thoughts, Victor Goldberg 2018 Barry University School of Law

Remedies In The Ucc: Some Critical Thoughts, Victor Goldberg

Barry Law Review

No abstract provided.


Importing Uniform Sales Law Into Article 2, Steven Walt 2018 Barry University School of Law

Importing Uniform Sales Law Into Article 2, Steven Walt

Barry Law Review

No abstract provided.


Celebrating Classical Rhetoric & Building Contemporary Law, Brian Larson 2018 Texas A&M University School of Law

Celebrating Classical Rhetoric & Building Contemporary Law, Brian Larson

Brian Larson

Classical rhetoric and the western legal tradition were born together in the Greek city-states of the 5th century BCE. Yet little is said about Isocrates, Aristotle, Cicero, and Quintilian (for example) in contemporary law schools, and lawyers know little about the classical rhetorical foundations of their practice. Beginning in 2017, a group of two dozen scholars (mostly teachers of communication and legal theory in law schools) began a distance reading-group to examine the intersections between classical rhetorical theory and contemporary legal theory, practice, and education. This special-format session will present some of the group’s findings in the form of ...


Foreword, Daniel B. Rodriguez 2018 Northwestern Pritzker School of Law

Foreword, Daniel B. Rodriguez

Northwestern University Law Review

No abstract provided.


The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb 2018 Brooklyn Law School

The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb

Brooklyn Journal of Corporate, Financial & Commercial Law

A recent Supreme Court decision, Husky International Electronics, Inc. v. Ritz, explores the meaning of the word “fraud” under a federal bankruptcy statutory section. That section uses the term “actual fraud,” and bears upon the question of whether a particular debt should be denied a discharge. The Court’s approach in defining fraud affords guidance to the question of defining fraud under other statutes. The Husky case also raised a veil piercing issue to be dealt with on remand. That issue involved the application of Texas statutory law precluding veil piercing in cases brought by contract creditors unless they were ...


Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham 2018 Brooklyn Law School

Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its “most contentious provisions.” As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being set for possible repeal of ...


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