Law Commons^™

Saiban In Seido: Lost In Translation?, Douglas G. Levin

Douglas G Levin

Japan plans to reintroduce a jury system in 2009. While most law review articles to date have focussed on the particular procedures of the proposed system as well as the implications of introducing a jury system in a stereotypically passive culture, this article proposes that the source of power underlying the proposed system will ultimately determine its fate. In short, for the proposed lay assessor system to achieve its goal of promoting democracy, its power must derive from the people rather than the government. Furthermore, Japan must consider fundamental changes to its criminal justice system so that its lay assessor …

Originalism & Early Civil Search Statutes: Searches & The Misunderstood History Of Suspicion & Probable Cause, Fabio Arcila

Fabio Arcila Jr.

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated. What attention has been paid, primarily as part of what I term the “conventional account,” has it that the Framers were divided about how accessible search remedies should be. This article explains why this conventional account is mostly wrong, and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law.

In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the …

Bellwether Trials, Alexandra Lahav

Alexandra D. Lahav

At the core of the controversy over mass torts lies a fundamental question: what justifies collective litigation? Scholars considering this question make one of two arguments. They either argue that collective justice must be limited by a process-based right to participation based on autonomy values, or they argue that collective justice is justified by utilitarian values and dismiss participation altogether. This Article presents a third alternative: that the democratic nature of the jury trial validates “group typical” justice, a subset of collective justice. The Article re-envisions the trial as a democratic enterprise, rather than solely an atomistic one. An innovative …