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Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller Jan 2005

Crawford’S Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller

Faculty Scholarship

This Essay examines the important ancillary doctrines that need to be developed in the wake of Crawford v. Washington (2004) and the "testimonial statement" approach to Confrontation Clause analysis to ensure that when confrontation is provided it in fact satisfies the requirements of the Clause. More than just some opportunity to cross-examine is required. The witness must be asked to make a public accusation in his or her direct testimony rather than simply being made available for questioning by defense counsel. A public accusation in not simply an after-thought of the right; rather, both it and cross-examination are central components. …

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Foreign Law And The Denominator Problem, Ernest A. Young Jan 2005

Foreign Law And The Denominator Problem, Ernest A. Young

Faculty Scholarship

No abstract provided.

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Exiting Treaties, Laurence R. Helfer Jan 2005

Exiting Treaties, Laurence R. Helfer

Faculty Scholarship

This Article analyzes the under-explored phenomenon of unilateral exit from international agreements and intergovernmental organizations. Although clauses authorizing denunciation and withdrawal from treaties are pervasive, international legal scholars and international relations theorists have largely ignored them. This Article draws upon new empirical evidence to provide a comprehensive interdisciplinary framework for understanding treaty exit. It examines when and why states abandon their treaty commitments and explains how exit helps to resolve certain theoretical and doctrinal puzzles that have long troubled scholars of international affairs.

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Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter Jan 2005

Why States Create International Tribunals: A Response To Professors Posner And Yoo, Laurence R. Helfer, Anne-Marie Slaughter

Faculty Scholarship

A recent article in the California Law Review by Professors Eric Posner and John Yoo, Judicial Independence in International Tribunals, argues that the only effective international tribunals are dependent tribunals, by which the authors mean ad hoc tribunals staffed by judges closely controlled by governments through the power of reappointment or threats of retaliation. Independent tribunals, by contrast, meaning tribunals staffed by judges appointed on similar terms as those in domestic courts, pose a danger to international cooperation. According to Posner and Yoo, independent tribunals are suspect because they are more likely to allow moral ideals, ideological imperatives or the …

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Polygamy, Prostitution, And The Federalization Of Immigration Law, Kerry Abrams Jan 2005

Polygamy, Prostitution, And The Federalization Of Immigration Law, Kerry Abrams

Faculty Scholarship

When Congress banned the immigration of Chinese prostitutes with the Page Law of 1875, it was the first restrictive federal immigration statute. Yet most scholarship treats the passage of the Page Law as a relatively unimportant event, viewing the later Chinese Exclusion Act as the crucial landmark in the federalization of immigration law. This Article argues that the Page Law was not a minor statute targeting a narrow class of criminals, but rather an attempt to prevent Chinese women in general from immigrating to the United States. Most Chinese women migrating to the United States in the early 1870s were …

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Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez Jan 2005

Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez

Faculty Scholarship

In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …

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Criminal Law In A Post-Freudian World, Deborah W. Denno Jan 2005

Criminal Law In A Post-Freudian World, Deborah W. Denno

Faculty Scholarship

Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code's mens rea provisions and defenses, which were developed in the 1950s and 1960s, a time of Freudian reign in the United States. For contemporary criminal law, however, this degree of psychoanalytic presence is troublesome. Freudian theory is difficult to apply to group conflicts and legal situations, and the theory emphasizes unconscious (rather than conscious) thoughts. The rising new science of …

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Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear Jan 2005

Canons Of Construction And The Elusive Quest For Neutral Reasoning, James J. Brudney, Corey Distlear

Faculty Scholarship

Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive …

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Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan Jan 2005

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan

Faculty Scholarship

This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …

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Judicial Federalism In The Ecj's Berlusconi Case: Toward More Credible Corporate Governance And Financial Reporting Recent Development, Martin Gelter, Mathias M. Siems Jan 2005

Judicial Federalism In The Ecj's Berlusconi Case: Toward More Credible Corporate Governance And Financial Reporting Recent Development, Martin Gelter, Mathias M. Siems

Faculty Scholarship

In recent years, the general public in many countries has become increasingly aware of issues concerning business accounting and financial reporting. Americans hardly need to be reminded of the Enron debacle, where members of the company's senior management engaged in fraudulent off-balance sheet transactions to disguise the true state of the company's financial condition, a scheme that auditors failed to uncover until the company's implosion. This and other major corporate governance cases involving questionable or fraudulent accounting practices led to the Sarbanes-Oxley Act of 2002. This law was an unprecedented Congressional intervention into corporate governance, an arena that had previously …

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Ingando Solidarity Camps: Reconciliation And Political Indoctrination In Post-Genocide Rwanda Note, Chi Adanna Mgbako Jan 2005

Ingando Solidarity Camps: Reconciliation And Political Indoctrination In Post-Genocide Rwanda Note, Chi Adanna Mgbako

Faculty Scholarship

This Note, based primarily on interviews with ingando participants, government officials, journalists, and genocide survivors conducted in Rwanda in January 2004, evaluates the merits and limits of government-run ingando solidarity camps as a means of fostering reconciliation in the complicated social landscape of post-genocide Rwanda. Focusing on ingando for ex-combatants, ex-soldiers, students, and released genocidaires, this Note argues that much of the ingando project is focused on the dissemination of pro-RPF ideology, a dangerous undertaking in a country in which political indoctrination and government-controlled information were essential in sparking and sustaining the genocide. Furthermore, a successful reconciliation program must take …

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Constitutional Right Against Excessive Punishment, The, Youngjae Lee Jan 2005

Constitutional Right Against Excessive Punishment, The, Youngjae Lee

Faculty Scholarship

When is a death sentence, a sentence of imprisonment, or a fine so "excessive" or "disproportionate" in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court's own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court's answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning …

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Theory Of Punitive Damages, Benjamin C. Zipursky Jan 2005

Theory Of Punitive Damages, Benjamin C. Zipursky

Faculty Scholarship

A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of …

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Technology And Internet Jurisdiction, Joel R. Reidenberg Jan 2005

Technology And Internet Jurisdiction, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

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Crossing The Himalayas: Exculpatory Clauses In Global Transport, Joseph Sweeney Jan 2005

Crossing The Himalayas: Exculpatory Clauses In Global Transport, Joseph Sweeney

Faculty Scholarship

No abstract provided.

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Rights, Performatives, And Promises In Karl Olivecrona’S Legal Theory, Martin P. Golding Jan 2005

Rights, Performatives, And Promises In Karl Olivecrona’S Legal Theory, Martin P. Golding

Faculty Scholarship

Karl Olivecrona (1971) maintains that "right" is a "hollow word," and so also for some other legal terms. "Right," he says, "has no conceptual background." He arrives at this position after an examination of metaphysical and naturalistic accounts, including American legal realism. Some of Olivecrona's arguments will be evaluated here. His position is influenced by Hagerstrom's theory of legal language, but he argues that Hagerstrom fails to account for how such terms as "right," "duty," etc. function in legal discourse and why they are useful. A parallel approach is also found in Olivecrona's book The Problem of the Monetary Unit …

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Book Review, Just Trade, Joost H. B. Pauwelyn Jan 2005

Book Review, Just Trade, Joost H. B. Pauwelyn

Faculty Scholarship

Reviewing, Frank J. Garcia, Trade, Inequality and Justice: Toward a Liberal Theory of Just Trade (2003)

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The Re-State-Ment Of Non-State Law: The State, Choice Of Law, And The Challenge From Global Legal Pluralism, Ralf Michaels Jan 2005

The Re-State-Ment Of Non-State Law: The State, Choice Of Law, And The Challenge From Global Legal Pluralism, Ralf Michaels

Faculty Scholarship

Should choice of law norms ever designate non-state norms as applicable law? The question is not new of course, although it is seldom discussed systematically. Yet the question moves from the periphery to the center once we view conflict of laws through the lens of globalization. If, through the lens of globalization, states and non-state communities both create norms, this should pose a challenges to conflict of laws rules that traditionally only designates state norms as applicable law. Somewhat surprisingly, conflict of laws and global legal pluralism rarely meet, so far, in analyses This paper does not set out its …

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Captured By Evil: The Idea Of Corruption In Law, Laura S. Underkuffler Jan 2005

Captured By Evil: The Idea Of Corruption In Law, Laura S. Underkuffler

Faculty Scholarship

Corruption is one of the most powerful words in the English language. When it comes to the treatment of corruption by law, however, corruption is a troubled concept. With increasing recognition of the costs of corruption for economic development, democratic governance, international aid programs, and other world goals, attempts to articulate what this destructive force is have led to an avalanche of theoretical writing. In the last fifteen years, corruption has been variously defined as the violation of law, a public servant's breach of public duty, an agent's betrayal of a principal's interests, the pursuit of secrecy, the denial of …

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Lawson Edward Thomas And Miami's Negro Municipal Court, Ernesto A. Longa Jan 2005

Lawson Edward Thomas And Miami's Negro Municipal Court, Ernesto A. Longa

Faculty Scholarship

Highlights Lawson Edward Thomas's career as a civil rights attorney and judge of Miami's apartheid municipal court (1950-1963).

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Pollution Without Solution: Flow Impairment Problems Under Clean Water Act Section 303, Reed D. Benson Jan 2005

Pollution Without Solution: Flow Impairment Problems Under Clean Water Act Section 303, Reed D. Benson

Faculty Scholarship

"This Article deals with one section of the CWA, section 303, and its implications for flow-impaired streams and related policy issues. While the CWA's main thrust is controlling pollution from "point sources" through a system of permits and technology-based effluent limits, section 303 takes a different approach, focusing on the quality of individual waterbodies and requiring corrective steps for each one that falls below standards. Section 303 addresses not only point source discharges, but other human activities that affect the chemical, physical, and biological integrity of the nation's waters, including pollution from non-point sources, and perhaps even flow impairment. Thus, …

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Treating Tribes Differently: Civil Jurisdiction Inside And Outside Indian Country, Max J. Minzner Jan 2005

Treating Tribes Differently: Civil Jurisdiction Inside And Outside Indian Country, Max J. Minzner

Faculty Scholarship

This Article attempts to analyze why, in the current jurisdictional framework, tribes are treated differently from states but not differently from each other. This article analyzes the key assumptions underlying jurisdictional and choice of law analyses both inside and outside Indian Country. After a summary overview of current tribal court systems, this Article attempts to identify features of tribal courts that might indicate that they a) might disadvantage non-tribal litigants and b) are threatened by the incursion of concurrent state jurisdiction. The article points to one potential reason that the Court has assumed that all Indian tribes are alike, which …

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The Gift Of Enron: An Opportunity To Talk About Capitalism, Equality And The Promise Of A North American Charter Of Fundamental Rights, Laura Spitz Jan 2005

The Gift Of Enron: An Opportunity To Talk About Capitalism, Equality And The Promise Of A North American Charter Of Fundamental Rights, Laura Spitz

Faculty Scholarship

In this Article, Enron is positioned as a promising opening in the debate about economic globalization and the regulation of advanced capitalism in North America. As a contribution to that debate, the author suggests that there are two aspects of advanced capitalism which call for supranational response and regulation. First, advanced capitalism is increasingly transnational (as distinct from international and intranational). This brings unique regulatory challenges to the fore. Second the regulation of advanced capitalism can be usefully understood as a substantive equality issue (as that concept in understood in Canadian law). In the past, this aspect of capitalism-thef act …

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Latinas In Legal Education- Through The Doors Of Opportunity: Assimilation, Marginalization, Cooptation Or Transformation?, Antoinette M. Sedillo Lopez Jan 2005

Latinas In Legal Education- Through The Doors Of Opportunity: Assimilation, Marginalization, Cooptation Or Transformation?, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.

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Four Questions On Critical Race Praxis: Lessons From Two Young Lives In Indian Country, Christine Zuni Cruz Jan 2005

Four Questions On Critical Race Praxis: Lessons From Two Young Lives In Indian Country, Christine Zuni Cruz

Faculty Scholarship

The Critical Race Lawyering Symposium in New York City brings me from Albuquerque, New Mexico. As I travel the day before the symposium, I reflect on the amount of time it will take. I leave Albuquerque at 8:23 a.m. and I am scheduled to arrive in New York City at 4:05 p.m., via Chicago. Given the two-hour time difference between the East Coast and the Rocky Mountain regions, I begin my day boarding the plane as the sun is rising in the morning sky and end it at my destination where the sun is setting. Even in this day and …

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The Picture Of Equality, Alfred Dennis Mathewson Jan 2005

The Picture Of Equality, Alfred Dennis Mathewson

Faculty Scholarship

This article discusses an eyewitness's analysis of events and circumstances surrounding cases involving the desegregation and integration of schools and colleges.

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Wet Water Law: New Mexico Style, G. Emlen Hall Jan 2005

Wet Water Law: New Mexico Style, G. Emlen Hall

Faculty Scholarship

Table of Contents for a course reader. v. 1. The nature of a New Mexico prior appropriation water right -- The attributes of new Mexico water rights -- Surface water and groundwater in New Mexico -- The State Engineer: an administered system -- Statutory adjudications -- New appropriations, transfers and sales of a New Mexico water right -- Emerging issues -- Water planning in New Mexico -- Constraints on the state law of prior appropriation -- v. 2. Emerging local issues -- Federal constraints on the state system -- Native American constraints on the state system -- Interstate water rights.

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The Supreme Court Of Science Speaks On Water Rights: The National Academy Of Sciences Columbia River Report And Its Water Policy Implications, Reed D. Benson Jan 2005

The Supreme Court Of Science Speaks On Water Rights: The National Academy Of Sciences Columbia River Report And Its Water Policy Implications, Reed D. Benson

Faculty Scholarship

Professor Benson reviews the Report on Columbia River water withdrawals and their effects on salmon recently issued by the National Academy of Sciences to the Washington State Department of Ecology, the agency responsible for managing Washingtons water withdrawals from the Columbia and its tributaries. After reviewing the Report, Professor Benson compares its recommendations with western water law's doctrine of prior appropriation and finds that many of the Report's recommendations are in direct conflict with prior appropriation principles. Finally, Professor Benson discusses the potential impact of the Report on water law in Washington and throughout the West. He concludes that, because …

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Recovering The Lost Worlds Of America's Written Constitutions, Christian G. Fritz Jan 2005

Recovering The Lost Worlds Of America's Written Constitutions, Christian G. Fritz

Faculty Scholarship

Recovering the Lost Worlds of America's Written Constitutions,' originating as the sixth Brennan Lecture delivered at Oklahoma City University Law School on November 7, 2002, explores the transformation of the right of revolution in the wake of the American Revolution. The significance of displacing the singular sovereign in the person of the king with the collective sovereign of 'the people,' gave rise to constitutional understandings that are at odds with today's constitutionalism that emphasizes the necessity of procedural regularity to effect legitimate constitutional revision. The article explores how 'circumvention' of such procedures was consistent with an earlier concept of the …

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The Role Of History And Culture In Developing Bankruptcy And Insolvency Systems: The Perils Of Legal Transplantation, Nathalie Martin Jan 2005

The Role Of History And Culture In Developing Bankruptcy And Insolvency Systems: The Perils Of Legal Transplantation, Nathalie Martin

Faculty Scholarship

In this Article, Professor Nathalie Martin examines societal attitudes toward debt and financial failure in the context of two global trends, the liberalization of bankruptcy and insolvency laws, and the increased availability of consumer credit around the world. The Article begins, with a description of the history of the U.S. economy, its risk-oriented capitalist ethos, its consumer culture, and its resulting consumer and business bankruptcy laws. The Article next briefly addresses the personal bankruptcy systems of Continental Europe, noting that in some places, U.S.-style bankruptcy systems have been enacted but not necessarily accepted. Professor Martin then discusses new laws being …

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