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2007

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Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach Jan 2007

Sharpening The Dialogue Debate: The Next Decade Of Scholarship, Kent Roach

Osgoode Hall Law Journal

The first part of this commentary examines the roles of coordinate construction in which legislatures act on their own interpretation of the constitution, second look cases in which the courts judge the constitutionality of a legislative reply to a judicial decision, and various constitutional remedies. The second part examines some differences in emphasis between the author's approach to dialogue and that taken by Hogg and his co-authors with respect to the justification of the judicial role in the dialogue, the relation between Charter dialogue and common law constitutionalism, and the proper interpretive approach to section 7 of the Charter. Three …

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Rights As A Functional Guide For Service Provision In Homeless Advocacy Creating Healthy Communities: Ending Homelessness, Nestor M. Davidson Jan 2007

Rights As A Functional Guide For Service Provision In Homeless Advocacy Creating Healthy Communities: Ending Homelessness, Nestor M. Davidson

Faculty Scholarship

Rights-based approaches to advocacy on behalf of homeless persons have long sought to vindicate important dignitary, liberty, and equality interests, as well as establish to entitlements to housing, mental health, substance abuse, and other services. This advocacy has had some success in shaping the systems that define the interaction between homeless persons and the state. Rights paradigms, however, can be undermined by the day-to-day reality of the lives of homeless individuals and families that are often shaped by profound need less for protection from the state than for meaningful support, and entitlement advocacy remains circumscribed by the reality of severely …

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Repairing Family Law, Clare Huntington Jan 2007

Repairing Family Law, Clare Huntington

Faculty Scholarship

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void, and inaugurate a larger debate about the central role of emotion in family law, by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and aggression, feel …

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Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra Jan 2007

Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra

Faculty Scholarship

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …

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Intentionalism's Revival , James J. Brudney Jan 2007

Intentionalism's Revival , James J. Brudney

Faculty Scholarship

This essay responds to an article by Professors Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter "BLMRod") that was posted in Legislation and Statutory Interpretation Abstracts on July 26, 2007, (http://ssrn.com/abstract=997924) and that will appear in the San Diego Law Review, vol.44, no.2, 2007. The essay situates BLMRod's article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod's use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the …

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Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar Jan 2007

Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar

Articles

Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …

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Crawford, Davis, And Way Beyond, Richard D. Friedman Jan 2007

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

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Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus Jan 2007

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

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On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar Jan 2007

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.

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Francis A. Allen--Architect Of Modern Criminal Procedure Scholarship, Yale Kamisar Jan 2007

Francis A. Allen--Architect Of Modern Criminal Procedure Scholarship, Yale Kamisar

Articles

Francis A. Allen, who spent the last eight years of his distinguished teaching career at the University of Florida, Fredric G. Levin College of Law, died at the age of eighty-seven. He was a leading figure in law teaching, and the legal profession generally, for more than four decades.

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International Consensus As Persuasive Authority In The Eighth Amendment, Youngjae Lee Jan 2007

International Consensus As Persuasive Authority In The Eighth Amendment, Youngjae Lee

Faculty Scholarship

This Article is about the epistemic significance of international consensus on constitutional interpretation in the Eighth Amendment context. First, the Article examines whether meaningful conclusions about one's desert judgments can be reached through a process of interjurisdictional comparison that focuses on the existence of a consensus on the question of what punishment is appropriate for what crimes and criminals. Second, this Article examines the relevance of international consensus on penal practices by analogizing the consensus to three different types of consensus: scientific, aesthetic, and moral. This Article concludes from this discussion that so long as the Supreme Court stays with …

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Busting The Bandito Boyz: Militarism, Masculinity, And The Hunting Of Undocumented Persons In The U.S.-Mexico Borderlands, Robert F. Castro Jan 2007

Busting The Bandito Boyz: Militarism, Masculinity, And The Hunting Of Undocumented Persons In The U.S.-Mexico Borderlands, Robert F. Castro

Journal of Hate Studies

“Bandito heroes flourish in many cultures because they symbolize a virtually universal belief: that at times it’s necessary to break the law in order to obtain justice,” writes historian Paul Vanderwood (1992, p. xix). The idea of justice does seem to animate many of the stories associated with the borderlands’ most famous outlaws. For example, retaliatory justice appears to be at the heart of the literal violence that Joaquin Murrieta inflicted on California Anglos during the nineteenth century. Joaquin Murrieta became famous for his lightning-fast robberies and bloody assaults in California during the 1850s Gold Rush. Reportedly, Murrieta was set …

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Forced Medication And The Need To Protect The Rights Of The Mentally Ill Criminal Defendant, Emily C. Lieberman Jan 2007

Forced Medication And The Need To Protect The Rights Of The Mentally Ill Criminal Defendant, Emily C. Lieberman

Cardozo Public Law, Policy & Ethics Journal

The note argues that the current legal framework for forcibly medicating mentally ill criminal defendants, particularly pre-trial detainees, often violates their constitutional rights. It contends that the reliance on "dangerousness" as a criterion for forced medication is too vague and easily abused, leading to inconsistent and unconstitutional applications. The analysis advocates for stricter standards, clearer definitions of dangerousness, and heightened judicial scrutiny to protect the rights of mentally ill defendants.

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2007-2008 Lindenwood University Undergraduate Course Catalog, Lindenwood University Jan 2007

2007-2008 Lindenwood University Undergraduate Course Catalog, Lindenwood University

Course Catalogs

Lindenwood University Undergraduate Course Catalog

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Conflict Resolution And Systemic Change, Susan Sturm, Howard Gadlin Jan 2007

Conflict Resolution And Systemic Change, Susan Sturm, Howard Gadlin

Journal of Dispute Resolution

This article suggests that the view of public norm elaboration and accountability underlying the critique of ADR is too narrow and needs to be rethought. Public norms do not consist only of the precedents developed and applied by courts or other adjudicative bodies. They also emerge when relevant institutional actors develop values or remedies through an accountable process of principled and participatory decision making, and then adapt these values and remedies to broader groups or situations. ADR can play a significant role in developing legitimate and effective solutions to common problems and, in the process, produce generalizable norms

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Healing A Fractured Community: The Use Of Community Sentencing Circles In Response To Hate Crimes, Brian Sapir Jan 2007

Healing A Fractured Community: The Use Of Community Sentencing Circles In Response To Hate Crimes, Brian Sapir

Cardozo Journal of Conflict Resolution

As with any social construct, the American criminal justice system is a constantly adapting and evolving mechanism that is influenced by politics, current events, and societal "hot-button" topics. Over the last century legal professionals, academics, and crime victims have voiced their dissatisfaction with certain aspects of traditional criminal justice systems. The failure of severe punishments to deter crime, the increasing occurrence of repeat offenders, and the growing costs of incarceration were all issues some saw as weaknesses in the criminal justice system. Moreover, at the heart of many people's dissatisfaction with the system was the seemingly complete exclusion of the …

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Apology In The Context Of Wrongful Conviction: Why The System Should Say It's Sorry, Abigail Penzell Jan 2007

Apology In The Context Of Wrongful Conviction: Why The System Should Say It's Sorry, Abigail Penzell

Cardozo Journal of Conflict Resolution

The first section of this Note will discuss apology as a psychological tool to heal victims, offenders, and the community. The second section will examine the use of apology in analogous contexts to that of wrongful conviction. The third section will explore the potential or perceived disadvantages of offering an apology in the criminal context. The fourth section will detail the desire for apology among the wrongfully convicted as well as give examples of situations - like Mr. Fuller's - in which an apology has been tendered and has helped victims reintegrate into society. Finally, I will conclude that the …

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Law School Catalog 2007, Wiener-Rogers Law Library, University Of Nevada, Las Vegas -- William S. Boyd School Of Law Jan 2007

Law School Catalog 2007, Wiener-Rogers Law Library, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Law School Catalogs

No abstract provided.

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Bulletin 2007-2008, Seattle University School Of Law Jan 2007

Bulletin 2007-2008, Seattle University School Of Law

Viewbooks

No abstract provided.

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Embracing The Dna Fingerprint Act, Patrick Haines Jan 2007

Embracing The Dna Fingerprint Act, Patrick Haines

Colorado Technology Law Journal

No abstract provided.

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Does Miranda Protect The Innocent Or The Guilty?, Steven B. Duke Jan 2007

Does Miranda Protect The Innocent Or The Guilty?, Steven B. Duke

Chapman Law Review

No abstract provided.

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A Scholar’S Journey On The Dark Side, William Gangi Jan 2007

A Scholar’S Journey On The Dark Side, William Gangi

Chapman Law Review

No abstract provided.

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The Paradoxical Structure Of Constitutional Litigation, Pamela S. Karlan Jan 2007

The Paradoxical Structure Of Constitutional Litigation, Pamela S. Karlan

Fordham Law Review

No abstract provided.

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Valuing Autonomy, Youngjae Lee Jan 2007

Valuing Autonomy, Youngjae Lee

Fordham Law Review

No abstract provided.

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See No Evil: Wrongful Convictions And The Prosecutorial Ethics Of Offering Testimony By Jailhouse Informants And Dishonest Experts, Myrna S. Raeder Jan 2007

See No Evil: Wrongful Convictions And The Prosecutorial Ethics Of Offering Testimony By Jailhouse Informants And Dishonest Experts, Myrna S. Raeder

Fordham Law Review

No abstract provided.

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The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues, Robert Aronson, Jacqueline Mcmurtrie Jan 2007

The Use And Misuse Of High-Tech Evidence By Prosecutors: Ethical And Evidentiary Issues, Robert Aronson, Jacqueline Mcmurtrie

Fordham Law Review

No abstract provided.

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Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib Jan 2007

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

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Lady Madonna, Children At Your Feet: The Criminal Justice System's Romanticization Of The Parent-Child Relationship, Jennifer M. Collins Jan 2007

Lady Madonna, Children At Your Feet: The Criminal Justice System's Romanticization Of The Parent-Child Relationship, Jennifer M. Collins

Faculty Journal Articles and Book Chapters

This Article is an attempt to begin a conversation about the way children who have been victimized by their parents are treated by the criminal justice system. I suggest that even though as a society we are obsessed with our children, that obsession has not translated into criminal justice policies that adequately protect them. Parental offenders are systematically treated better by the criminal justice system than are extrafamilial offenders, and we need to grapple with whether that preferential treatment is appropriate. I suggest that in many instances it is not, and I therefore propose some principles that I hope provide …

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Constitutional Limits On Extraterritorial Jurisdiction: Terrorism And The Intersection Of National And International Law, Anthony J. Colangelo Jan 2007

Constitutional Limits On Extraterritorial Jurisdiction: Terrorism And The Intersection Of National And International Law, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article addresses the possible constitutional limits on the ability of the United States to project and apply extraterritorially its criminal laws and, in particular, its anti-terror laws. Although plainly central to exceedingly urgent and important issues presently facing the United States, this topic has been under-treated in academic commentary and muddled in the courts. Yet its analysis pits U.S. sovereignty and prevailing efforts to combat dangerous criminal activity beyond our borders squarely against principles of limited government and individual rights: What sources of lawmaking authority empower Congress to project U.S. law abroad? Does the Constitution protect individual defendants against …

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Doing Katrina Time, Pamela R. Metzger Jan 2007

Doing Katrina Time, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

This Article explores one Katrina-law problem: the plight of the poor, unrepresented and uncharged prisoners. It attempts to explain why these detainees were unrepresented and abandoned and how we might better guarantee the quality of justice for future detainees. Katrina has proved that bright-line rules are the best lines of defense for the poor; criminal justice systems honor concrete rules more readily than abstract imperatives. Katrina also proved that good lawyering on behalf of poor people can bring joy in the midst of despair.

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