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2006

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Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar Jan 2006

Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar

Faculty Scholarship

This chapter explores issues in jury trials involving persons accused of committing acts of international terrorism or financially or otherwise supporting those who do or may commit such acts. The jury is a unique institution that draws upon laypersons to decide whether a person charged with a crime is guilty or innocent. Although the jury is instructed and guided by a trial judge and procedural rules shape what the jury is allowed to hear, ultimately the laypersons deliberate alone and render their verdict. A basic principle of the jury system is that at the start of trial the jurors should …

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Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington Jan 2006

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Faculty Scholarship

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills …

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Checks And Balances: Congress And The Federal Court, Paul D. Carrington Jan 2006

Checks And Balances: Congress And The Federal Court, Paul D. Carrington

Faculty Scholarship

This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …

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Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2006

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

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Why States Create International Tribunals: A Theory Of Constrained Independence, Laurence R. Helfer Jan 2006

Why States Create International Tribunals: A Theory Of Constrained Independence, Laurence R. Helfer

Faculty Scholarship

Over the last fifteen years, states have created more independent international tribunals, submitted themselves to the jurisdiction of such tribunals, and litigated disputes before such tribunals in increasing numbers. These developments appear to be inconsistent with principal-agent theory, which asserts states are rational actors jealous of their sovereignty and dubious of delegating authority to international institutions they cannot tightly control. However, such delegations of judicial authority actually serve state interests by enhancing credibility of international law commitments in specific multilateral settings. Having established such tribunals, however, states are concerned that independent judges operate within acceptable parameters. They thus establish a …

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Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin Jan 2006

Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin

Faculty Scholarship

The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …

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Why It Mattered To Dover That Intelligent Design Isn’T Science, Richard B. Katskee Jan 2006

Why It Mattered To Dover That Intelligent Design Isn’T Science, Richard B. Katskee

Faculty Scholarship

No abstract provided.

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Voices From The Stars? America's Generals And Public Debates, Charles J. Dunlap Jr. Jan 2006

Voices From The Stars? America's Generals And Public Debates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

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Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz Jan 2006

Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz

Faculty Scholarship

Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …

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Universal Rights And Wrongs, Michael E. Tigar Jan 2006

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.

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When Does Deliberating Improve Decisionmaking?, Mathew D. Mccubbins, Daniel B. Rodriguez Jan 2006

When Does Deliberating Improve Decisionmaking?, Mathew D. Mccubbins, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

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Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast Jan 2006

Conditions For Judicial Independence, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast

Faculty Scholarship

No abstract provided.

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Courts, Congress, And Public Policy, Part Ii: The Impact Of The Reapportionment Revolution On Congress And State Legislatures, Jeffrey R. Lax, Mathew D. Mccubbins Jan 2006

Courts, Congress, And Public Policy, Part Ii: The Impact Of The Reapportionment Revolution On Congress And State Legislatures, Jeffrey R. Lax, Mathew D. Mccubbins

Faculty Scholarship

No abstract provided.

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Agenda Control In The Bundestag, 1980-2002, William M. Chandler, Gary W. Cox, Mathew D. Mccubbins Jan 2006

Agenda Control In The Bundestag, 1980-2002, William M. Chandler, Gary W. Cox, Mathew D. Mccubbins

Faculty Scholarship

We find strong evidence of monopoly legislative agenda control by government parties in the Bundestag. First, the government parties have near-zero roll rates, while the opposition parties are often rolled over half the time. Second, only opposition parties’ (and not government parties’) roll rates increase with the distances of each party from the floor median. Third, almost all policy moves are towards the government coalition (the only exceptions occur during periods of divided government). Fourth, roll rates for government parties sky- rocket when they fall into the opposition and roll rates for opposition parties plummet when they enter government, while …

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Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow Jan 2006

Criminal Justice Collapse: The Constitution After Hurricane Katrina, Brandon L. Garrett, Tania Tetlow

Faculty Scholarship

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal …

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Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr. Jan 2006

Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr.

Faculty Scholarship

No abstract provided.

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Neo-Strategicon: Modernized Principles Of War For The 21st Century, Charles J. Dunlap Jr. Jan 2006

Neo-Strategicon: Modernized Principles Of War For The 21st Century, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

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The Unwarranted Conclusions Drawn From Vincent V. Lake Erie Transportation Co. Concerning The Defense Of Necessity, George C. Christie Jan 2006

The Unwarranted Conclusions Drawn From Vincent V. Lake Erie Transportation Co. Concerning The Defense Of Necessity, George C. Christie

Faculty Scholarship

No abstract provided.

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Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman Jan 2006

Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman

Publications

This article provides an overview of advisory counsel used to assist pro se criminal defendants, including the appointment and duties of advisory counsel, ethical obligations, and considerations for trial judges and prosecutors.

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Old Ground And New Directions At Sacred Sites On The Western Landscape, Kristen A. Carpenter Jan 2006

Old Ground And New Directions At Sacred Sites On The Western Landscape, Kristen A. Carpenter

Publications

The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes …

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Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter Jan 2006

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

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Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton Jan 2006

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

Publications

This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

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Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber Jan 2006

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

Publications

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

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Rethinking The Great Lakes Compact, Mark Squillace Jan 2006

Rethinking The Great Lakes Compact, Mark Squillace

Publications

On December 13, 2005, the Governors and Premiers of the Great Lakes states and provinces signed a Compact and Agreement that commits the parties to a rigorous program to regulate individual water uses, with citizen suits to enforce the requirements. While the Great Lakes-St. Lawrence River Basin Water Resources Compact and companion Agreement are commendable in many respects, this Article argues that people who care about the future of the Great Lakes should urge policymakers to reject the current proposals and rethink the entire approach. The proposed compact is fundamentally flawed and will not achieve the ultimate stated goal of …

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The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White Jan 2006

The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White

Publications

No abstract provided.

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The Renaissance Of Tribal Sovereignty, The Negative Doctrinal Feedback Loop, And The Rise Of A New Exceptionalism, Sarah Krakoff Jan 2006

The Renaissance Of Tribal Sovereignty, The Negative Doctrinal Feedback Loop, And The Rise Of A New Exceptionalism, Sarah Krakoff

Publications

No abstract provided.

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A Brief History Of The U.S.-American Indian Nations Relationship, Richard B. Collins Jan 2006

A Brief History Of The U.S.-American Indian Nations Relationship, Richard B. Collins

Publications

No abstract provided.

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The Salmon People, Judge Boldt, And The Rule Of Law, Charles F. Wilkinson Jan 2006

The Salmon People, Judge Boldt, And The Rule Of Law, Charles F. Wilkinson

Publications

No abstract provided.

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Assessing Internal Revenue Code Section 132 After Twenty Years, Wayne M. Gazur Jan 2006

Assessing Internal Revenue Code Section 132 After Twenty Years, Wayne M. Gazur

Publications

In 1984, Congress enacted Internal Revenue Code section 132 to bring more certainty to the taxation of employee fringe benefits. This article examines the impact of the legislation from the standpoint of administrative pronouncements and taxpayer litigation. The article concludes that section 132 has produced little litigation, but primarily because it has played the role of increasing exclusions. It remains unclear whether section 132 has also contained the growth of new forms of nonstatutory fringe benefits.

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Cite Checking: A Brave New World, Susan Nevelow Mart Jan 2006

Cite Checking: A Brave New World, Susan Nevelow Mart

Publications

No abstract provided.

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