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Articles 91 - 120 of 150
Full-Text Articles in Law
The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian E. Dervan
The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian E. Dervan
Law Faculty Scholarship
Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining …
Information Warfare And Civilian Populations: How The Law Of War Addresses A Fear Of The Unknown, Lucian E. Dervan
Information Warfare And Civilian Populations: How The Law Of War Addresses A Fear Of The Unknown, Lucian E. Dervan
Law Faculty Scholarship
Imagine a civilian communications system is being temporarily relied upon by an opposing military force for vital operations. If one launches a computer network attack against the communications system, the operation may disable the opposing force’s ability to function adequately and, as a result, prompt their surrender. The alternative course of action is to launch a traditional kinetic weapons attack in the hopes of inflicting enough casualties on the troops to induce surrender. Given these options, the law of war would encourage the utilization of the computer network attack because it would result in less unnecessary suffering. But is the …
New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan
New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan
Law Faculty Scholarship
Over-criminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of the over-criminalization phenomenon by examining two types of over-criminalization prevalent in white collar criminal law. The first type of over-criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly. The second type of over-criminalization addressed in this article is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to …
Re-Evaluating Corporate Criminal Liability: The Doj’S Internal Moral Culpability Standard For Corporate Criminal Liability, Lucian E. Dervan
Re-Evaluating Corporate Criminal Liability: The Doj’S Internal Moral Culpability Standard For Corporate Criminal Liability, Lucian E. Dervan
Law Faculty Scholarship
This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own …
Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.
Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.
Law Faculty Scholarship
An essay on Pearson v. Callahan and its impact on First Amendment Law.
Brokering Education: A Study Of Charter Receipt, Renewal, And Revocation In Louisiana's Charter Schools, Amy L. Moore
Brokering Education: A Study Of Charter Receipt, Renewal, And Revocation In Louisiana's Charter Schools, Amy L. Moore
Law Faculty Scholarship
The most fundamental part of a charter school is its charter, its governing document. This article traces the history of Louisiana's charter system from its inception and walks through the legal process of obtaining and retaining a charter and what happens to cause a charter to be revoked. Louisiana provides for five types of charters via statute that have different avenues of funding and different legal requirements from the state. Louisiana provides an excellent case study for the process of chartering because of the recent boom of charter schools in the area; there are lessons to be learned both in …
When Enough Isn't Enough: Qualitative And Quantitative Assessments Of Adequate Education In State Constitutions By State Supreme Courts, Amy L. Moore
Law Faculty Scholarship
This article facilitates the education debate by directing the question of what having an adequate education means, and how state supreme courts are grappling with the issue. This article uses a study of case law from state supreme courts analyzing state constitutional requirements for education. Three themes emerge from this study of case law: state supreme courts are dealing with a choice between judicial restraint and interference; courts struggle with how much to consider funding as opposed to other issues; and courts are trying to define adequacy claims within the context of equity claims.
Waging War Within The Constitution, Alberto R. Gonzales
Waging War Within The Constitution, Alberto R. Gonzales
Law Faculty Scholarship
This Article examines the United States' response to the September 11, 2001 attacks by Al Qaeda from my perspective as Counsel to the President and then later as Attorney General. It reviews the actions of government lawyers and how federal courts have judged the implementation of U.S. government policy. It explains that U.S. government officials quickly understood that our nation was confronted with a non-state enemy fighting an unconventional war. This forced us to make a number of difficult decisions quickly about how best to fight this threat in a manner consistent with the United States' domestic and international legal …
Good Enough For Government Work: The Interpretation Of Positive Constitutional Rights In State Constitutions, Jeffrey Omar Usman
Good Enough For Government Work: The Interpretation Of Positive Constitutional Rights In State Constitutions, Jeffrey Omar Usman
Law Faculty Scholarship
The United States Supreme Court ruled in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and reaffirmed in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) that absent conditions of confinement the Due Process Clause imposes no affirmative obligations upon government to protect an individual’s life, liberty, or property. These decisions reflect the Supreme Court’s broader understanding of the United States Constitution as a guarantor of negative rights but devoid of assurance of positive rights. Like the constitutions of many other countries, state constitutions have charted a different course. Unlike their federal counterpart, state …
The Unmerry Widow: Spousal Disinheritance And Life Insurance In North Carolina, Jeffrey S. Kinsler
The Unmerry Widow: Spousal Disinheritance And Life Insurance In North Carolina, Jeffrey S. Kinsler
Law Faculty Scholarship
In spite of our nation’s long-held public policy of protecting surviving spouses, some people purposely disinherit their spouses. For centuries, North Carolina more or less tolerated intentional spousal disinheritance. In 1959, in an effort to protect surviving spouses from deliberate disinheritance, North Carolina adopted a “right of dissent” statute that authorized a surviving spouse to renounce the decedent spouse’s will and receive a statutorily prescribed share (ranging from one-sixth to one-half) of the decedent spouse’s probate estate. Because the dissent statute was limited to the decedent spouse’s probate estate, it was easily circumvented through the use of non-probate transfers. In …
Lost In The Maze Of Appeals: The Eleventh Circuit's Review Of Decisions By The Board Of Immigration Appeals, Amy L. Moore
Lost In The Maze Of Appeals: The Eleventh Circuit's Review Of Decisions By The Board Of Immigration Appeals, Amy L. Moore
Law Faculty Scholarship
The Eleventh Circuit reviews decisions made by the Board of Immigration Appeals with a very lenient substantial evidence test that incorporates the idea of compulsion. In other words, the record must compel an opposite conclusion for a decision to be overturned as opposed to merely being unsupported by substantial evidence. This article details the job of the Board of Immigration Appeals, the types of claims it hears, and the types of review applied to it by the Eleventh Circuit. A study of 251 cases from 1990 through 2008 suggests that the Eleventh Circuit hardly ever overturns the Board of Immigration …
The Game Is Afoot: Constitutionalizing The Right To Hunt And Fish In The Tennessee Constitution, Jeffrey Omar Usman
The Game Is Afoot: Constitutionalizing The Right To Hunt And Fish In The Tennessee Constitution, Jeffrey Omar Usman
Law Faculty Scholarship
The normative role of state constitutions, which are simultaneously paramount state law and inferior to the whims of even the most minor federal regulation, is a matter of some uncertainty. In recent years, state constitutions have been significantly affected by another wave of popular constitutionalism. As part of this movement, since 1996, seven states have adopted constitutional provisions guaranteeing a right to hunt and fish. This article explores the constitutionalization of hunting and fishing rights under state constitutions. It begins by tracing hunting and fishing rights through western legal history with a special emphasis on Ancient Rome, England, and the …
A Decade Later: Adarand And Croson And The Status Of Minority Preferences In Government Contracting, Lynn Ridgeway Zehrt
A Decade Later: Adarand And Croson And The Status Of Minority Preferences In Government Contracting, Lynn Ridgeway Zehrt
Law Faculty Scholarship
This Article analyzes sixteen decisions in an effort to assist governmental entities in achieving the noble goal of “confront[ing] the effects of racial discrimination”8 in government contracting. Part I summarizes the Supreme Court’s decisions in Adarand and Croson, focusing primarily on the Court’s definition of strict scrutiny in those decisions. It also includes a brief description of the historical development of affirmative action in government contracting. Part II explores the impact of the Adarand decision on federal programs and considers not only the statutory revisions prompted by that decision but also the subsequent appellate decisions that evaluated these federal programs …
Arthur Andersen And The Temple Of Doom, Jeffrey S. Kinsler
Arthur Andersen And The Temple Of Doom, Jeffrey S. Kinsler
Law Faculty Scholarship
The story of Nancy Temple ("Temple") and Arthur Andersen ("Andersen") is infamous in legal ethics. Temple was the in-house lawyer that advised Andersen's employees to shred documents on the eve of the Security and Exchange Commission's ("SEC") investigation of Enron Corporation ("Enron"). Temple's advice triggered a string of events that culminated in the needless demise of America's fifth-largest accounting firm. By contrast, my Arthur Andersen story is unknown, until now that is. In late 1999, I was offered the position on Andersen's in-house staff that Temple ultimately accepted. I declined the offer, for I suspected that Andersen was not seeking …
Defining Religion: The Struggle To Define Religion Under The First Amendment And The Contributions And Insights Of Other Disciplines Of Study, Including Theology, Psychology, Sociology, The Arts, And Anthropology, Jeffrey Omar Usman
Law Faculty Scholarship
This article attempts to explore from many vantage points one word within one context — the word “religion” in the First Amendment of the United States Constitution. The article begins with placing our understanding of religion in a historical context. By exploring the history of religious liberty in the colonies and the Founders’ view thereof, an understanding of what the Founders were seeking to protect by safeguarding religious liberty will be gained. Having established this framework, the article then addresses overarching issues that complicate the quest to define religion. Then, the article transitions into an exploration of the development of …
Plea Bargaining's Survival: Financial Crimes Plea Bargaining, A Continued Triumph In A Post-Enron World, Lucian E. Dervan
Plea Bargaining's Survival: Financial Crimes Plea Bargaining, A Continued Triumph In A Post-Enron World, Lucian E. Dervan
Law Faculty Scholarship
This article examines the war on financial crimes that began after the collapse of Enron in 2001. Although many believed that the reforms implemented following this scandal led to greater prosecutorial focus on financial crimes and longer prison sentences, an analysis of data from 1995 through 2006 reveals that little has actually changed. The statistics demonstrate that the government's focus on financial crimes has not increased and prison sentences for fraud have remained stagnant. How could this be the case? It is this author's hypothesis that although prosecutors could have chosen to use new statutes and amendments to the United …
Georgia's Noble Revolution: Three Governors, Two Armies, The Georgia Supreme Court, And The Gubernatorial Election Of 1946, Lucian E. Dervan
Georgia's Noble Revolution: Three Governors, Two Armies, The Georgia Supreme Court, And The Gubernatorial Election Of 1946, Lucian E. Dervan
Law Faculty Scholarship
In 1946, the governor-elect of Georgia died, sparking a constitutional battle that brought a state government to its knees and a state supreme court to the height of its power. As two armies drew up on the streets of Atlanta, fights erupted in the executive offices and two men stood head to head in a battle for the vacant governor's seat. Into this fray, however, came the rule of law in the form of the state courts, and what may have swelled into an armed conflict of unseen proportions in twentieth century American politics ended with the stirring strike of …
Blogs And The First Amendment, David L. Hudson Jr.
Blogs And The First Amendment, David L. Hudson Jr.
Law Faculty Scholarship
An essay discussing the First Amendment implications of blogs.
Even Judges Don’T Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings, Timothy P. Chinaris
Even Judges Don’T Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings, Timothy P. Chinaris
Law Faculty Scholarship
A lawyer charged with a disciplinary violation is in a precarious position. Not only has the lawyer been accused of being "unethical," but he or she faces prosecution by an adversary typically staffed with professional prosecutors who are familiar with the system's often-arcane procedures and backed up by substantial financial resources. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Will such testimony be admitted? Unfortunately for the accused lawyer, the answer is not at all clear. The relatively few jurisdictions that have directly …
More Than The Camel’S Nose: The Sarbanes-Oxley Act As Bad News For Lawyers, Clients, And The Public, Timothy P. Chinaris
More Than The Camel’S Nose: The Sarbanes-Oxley Act As Bad News For Lawyers, Clients, And The Public, Timothy P. Chinaris
Law Faculty Scholarship
Business executives, accountants, lawyers, and the general public have shown great interest in the Sarbanes-Oxley Act ("the Act") that was passed by Congress and signed into law by President George W. Bush in 2002. Designed as securities legislation, the Act reaches into areas of lawyer conduct, and the regulation of that lawyer conduct, that previously were the domain primarily of state supreme courts. Lawyers, law firms, and bar organizations have recognized that the concept of what it means to be an ethical lawyer has been altered by the Act. Related developments spawned by the Act's passage will continue to change …
Justice Brennan's Significant Departure And Warning Of An Evisceration, David L. Hudson Jr.
Justice Brennan's Significant Departure And Warning Of An Evisceration, David L. Hudson Jr.
Law Faculty Scholarship
An essay on Justice Brennan's First Amendment jurisprudence regarding obscenity and the secondary effects doctrine.
Student Expression In The Age Of Columbine: Securing Safety And Protecting First Amendment Rights, David L. Hudson Jr.
Student Expression In The Age Of Columbine: Securing Safety And Protecting First Amendment Rights, David L. Hudson Jr.
Law Faculty Scholarship
"Student Expression in the Age of Columbine" is one in an ongoing series of First Reports, published by the First Amendment Center, on major First Amendment issues of our time.
The Separation Of Powers And The Public Policy Role Of The State Court In A Routine Case, Harold See
The Separation Of Powers And The Public Policy Role Of The State Court In A Routine Case, Harold See
Law Faculty Scholarship
Grand questions like those of tyranny and anarchy rarely present themselves in royal attire, but, instead, appear in humble garb. I wish to address the constitutional issue of the separation and balance of powers in our tripartite structure of government, but I will address it in humble dress.
Does Capital Punishment Have A Future? : A Resource Guide For Teachers, David L. Hudson Jr.
Does Capital Punishment Have A Future? : A Resource Guide For Teachers, David L. Hudson Jr.
Law Faculty Scholarship
The resource guide is intended to help teachers lead students through an exploration of the application of capital punishment in the United States. It offers substantive information about landmark U.S. Supreme Court cases affirming the constitutionality of the dearth penalty, establishing limits for its imposition, and setting legal procedures for judicial review. It explores the philosophical arguments for and against the death penalty, the social context for the death penalty debate, and current international perspectives. Understanding capital punishment and the issues it raises for the American legal system is necessary for students to become fully functioning citizens in a constitutional …
Taxation Without Explanation: The Federal Gift Tax, Jeffrey S. Kinsler
Taxation Without Explanation: The Federal Gift Tax, Jeffrey S. Kinsler
Law Faculty Scholarship
The Federal Gift Tax is designed to implement two competing policies: to tax gifts so as to prevent taxpayers from depleting their estates (and thus evading the estate tax) with tax-free lifetime transfers; but to tax gifts at a rate lower than testamentary transfers so as to encourage taxpayers to circulate wealth during life, thereby stimulating economic growth and income tax revenue. The gift tax has always been carefully crafted to balance these competing interests. That is, until now. The Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA") completely perverted these two policies.' EGTRRA was sold to the …
Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler
Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler
Law Faculty Scholarship
For all practical purposes, the Constitution prescribes only one limit on the federal government's power to tax: the Uniformity Clause, which requires that indirect taxes, such as income and excise taxes, be "uniform throughout the United States ... " It is exceedingly rare for a federal tax law to violate the Uniformity Clause. The Internal Revenue Code does not fix different taxes for different states, as Congress has carefully crafted the tax laws to avoid geographical distinctions. Unfortunately, the Internal Revenue Service ("IRS") has not always been so careful. In recent years, the IRS has adopted a practice of applying …
Three Governors: Herman Talmadge, The Georgia Supreme Court And The Gubernatorial Election Of 1946, Lucian E. Dervan
Three Governors: Herman Talmadge, The Georgia Supreme Court And The Gubernatorial Election Of 1946, Lucian E. Dervan
Law Faculty Scholarship
Herman Talmadge, who died March 21, 2002, was a governor, senator, and Georgia icon who controlled state politics for much of the last half of the 20th century. While many events in Talmadge’s life deserve attention, one event in particular stands out amongst the trials and tribulations, victories and scandals in this long American political life. In 1946, the Georgia gubernatorial election brought a state government to its knees, a state Supreme Court to the height of its power and Talmadge into the national spotlight as a revolver toting aspiring governor.
The Evolution Of Iranian Islamism From The Revolution Through The Contemporary Reformers, Jeffrey Omar Usman
The Evolution Of Iranian Islamism From The Revolution Through The Contemporary Reformers, Jeffrey Omar Usman
Law Faculty Scholarship
This Note explores the evolution and maturation of Iranian Islamism from the revolutionary elites through the contemporary reformers of the 21st century. The Author examines the conflicting ideological influences that are shaping the Islamist movement in Iran. This Note begins by presenting the framework of the fundamental contradictions that underlie Iranian Islamist ideology. The analysis of the Iranian Constitution is divided into an exploration of the institutional role of the clerical elites in the form of the faqih and the Council of Guardians, the constitutionally defined role of women, the democratic elements in the Iranian Constitution, and Marxism and environmentalism …
Reflecting On The Virtual Child Porn Decision, David L. Hudson Jr.
Reflecting On The Virtual Child Porn Decision, David L. Hudson Jr.
Law Faculty Scholarship
An essay on Ashcroft v. Free Speech Coalition, the so-called virtual child pornography case.
Justice Clarence Thomas: The Emergence Of A Commercial-Speech Protector, David L. Hudson Jr.
Justice Clarence Thomas: The Emergence Of A Commercial-Speech Protector, David L. Hudson Jr.
Law Faculty Scholarship
An examination of Justice Clarence Thomas' jurisprudence regarding commercial speech.