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Full-Text Articles in Law
#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman
#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman
Faculty Articles
Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That is 94 percent of the committee membership. Of that same group, 513—or 81 percent—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while experts—are …
Mitigating Foul Blows, Mary Bowman
Mitigating Foul Blows, Mary Bowman
Faculty Articles
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary. Cognitive bias research illuminates the reasons for, and …
Clarence Thomas The First Ten Years: Looking For Consistency, Mark Niles
Clarence Thomas The First Ten Years: Looking For Consistency, Mark Niles
Faculty Articles
Dean Niles describes his observation and impression of the first ten years of Clarence Thomas’ judgeship. While Dean Niles admits that his own views are more liberal than Clarence Thomas’, he was not initially concerned about those differences. But as the days, weeks and years passed, notwithstanding Dean Niles’ early stoicism, serious concerns about the candidate, and later the Justice, began to arise. These concerns were not based on Justice Thomas' beliefs or ideology, but on a growing set of inconsistencies that began to arise between some of his beliefs and actions. With all due respect to a man who …
Freedom Of Religion & Religious Minorities In Pakistan: A Study Of Judicial Practice, Tayyab Mahmud
Freedom Of Religion & Religious Minorities In Pakistan: A Study Of Judicial Practice, Tayyab Mahmud
Faculty Articles
This article explores the practice of the superior judiciary of Pakistan as it relates to freedom of religion and rights of religious minorities. Pakistan's successive constitutions, which guarantee fundamental rights and provide for separation of powers and judicial review, contemplate judicial protection against unlawful executive and legislative actions. The record of Pakistan's judiciary about protection of the rights of religious minorities is uneven and has gone through three phases. The first phase is remarkable for unequivocal protection of freedom of religion and religious minorities. The second phase contracted this protection through undue deference to the legislature. In the last phase …
Praetorianism & Common Law In Post-Colonial Settings: Judicial Responses To Constitutional Breakdowns In Pakistan, Tayyab Mahmud
Praetorianism & Common Law In Post-Colonial Settings: Judicial Responses To Constitutional Breakdowns In Pakistan, Tayyab Mahmud
Faculty Articles
The successive constitutional crises that confronted the Pakistani courts were not of their own making. But the doctrinally inconsistent, judicially inappropriate, and politically timid responses fashioned by these courts ultimately undermined constitutional governance. When confronted with the question of the validity and scope of extra constitutional power, the courts vacillated between Hans Kelsen's theory of revolutionary validity, Hugo Grotius's theory of implied mandate, and an expansive construction of the doctrine of state necessity. A more principled and realistic response would have been to declare the validity of extra constitutional regimes a nonjusticiable political question. Besides ensuring doctrinal consistency, a refusal …
Testimonial Consistency: The Hobgoblin Of The Federal False Declaration Statute, Sidney Delong
Testimonial Consistency: The Hobgoblin Of The Federal False Declaration Statute, Sidney Delong
Faculty Articles
This article focuses on the inconsistent statement provision of the Federal False Declaration Statute. Part I of this article identifies certain anomalous aspects of perjury that make it particularly difficult to control by threats of punishment. Perjury's resemblance to an innocent mistake creates a risk that criminal sanctions will be misapplied. These sanctions may have counterproductive effects, at times inducing people to commit perjury and at others inhibiting people from correcting inaccurate testimony that they have previously given. Part II demonstrates the way in which the conflict between the goals of deterrence and mitigation is manifested in the federal perjury …