Law Commons^™

Taking Narrow Channel Collision Prevention Seriously To More Effectively Manage Marine Transportation System Risk, Craig H. Allen

Articles

This Article locates the narrow channel rule in the larger context of risk management in confined waters. It begins by examining the risks posed by vessel navigation in narrow channels and fairways in the United States and the risk management measures employed to eliminate or reduce those risks, including the narrow channel rule in the applicable rules of the road. The Article then identifies problems with the existing rule and examines several alternatives to address the problems. The Article concludes that mariners deserve clearer guidance on how to identify the waters where Rule 9 applies than they have so far …

Changing Fashions In Advocacy: 100 Years Of Brief-Writing Advice, Helen A. Anderson

Articles

American appellate practice is accomplished mainly through the written word, and there seems to be a modem consensus about what constitutes a good appellate brief. Books, articles, and continuing legal education materials tell the appellate advocate to be succinct, to organize arguments clearly, and to present facts and law truthfully yet persuasively. The ideal appellate advocate is a careful strategist and accurate researcher who writes crisply and credibly. The power of emotional or narrative arguments has not been stressed although this may be changing-because appellate judges are presumed to be less emotional than juries.

As one who teaches advocacy, and …

But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas

Articles

In Part I of this Article, I will illustrate the hidden declarant issue through a series of hypotheticals that highlight both the hearsay and Confrontation Clause problems associated with proving former testimony. Next, in Part II, I will demonstrate that treating the hidden declarant's statements as testimonial, and thus subject to exclusion on Confrontation Clause grounds, is consistent with Crawford and its progeny.

I will then demonstrate, in Part III, that historically, in both England and the United States, the accused had the right to confront hidden declarants, and that the historical exception for former testimony does not extinguish the …

Taking The High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, Maureen A. Howard

Articles

In this Article, I review the efficacy of peremptory challenges and conclude that both empirical and anecdotal evidence confirm such challenges are of little utility. I contend that the marginal benefit of peremptory challenges to a criminal prosecutor is outweighed by the damage done to both the actual and perceived fairness of the system, and that imbalance should persuade prosecutors to consider a wholesale voluntary waiver of peremptory challenges.

Embedded Advertising And The Venture Consumer, Zahr Said

Articles

Embedded advertising—marketing that promotes brands from within entertainment content—is a thriving, rapidly changing practice. Analysts estimate that embedded advertising expenditures will exceed $10 billion in 2010. The market continues to grow even as traditional advertising revenues contract. The relatively few legal scholars who have studied embedded advertising believe that it is under-regulated. Ineffective regulation, they claim, is deeply troubling because corporations may, with legal impunity, deceptively pitch products to trusting viewers. Critics charge that embedded advertising creates "hyper-commercialism," distorts consumers' tastes, taints the artistic process, and erodes faith in public discourse.

This Article argues that the critics are wrong. Sponsorship …

"I'M Dying To Tell You What Happened": The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Articles

This Article demonstrates the existence and delineates the scope of a federal constitutional definition of "dying declarations" that is distinct from the definitions set forth in the Federal Rules of Evidence and their state counterparts. This Article further demonstrates that states have state constitutional definitions of "dying declarations" (for purposes of interpreting state constitutional analogues to the Confrontation Clause of the Sixth Amendment) that may differ in important respects from the federal constitutional definition of "dying declarations."

This Article then shows that some of the definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and …

The Effect Of Legal Professionalization On Moral Reasoning: A Reply To Professor Vischer And Professor Wendel, Michael Hatfield

Articles

Responding to comments made on Professionalizing Moral Deference.

Customary Practice And Community Governance In Implementing The Human Right To Water--The Case Of The Acequia Communities Of Colorado's Rio Culebra Watershed, Gregory A. Hicks, Devon G. Peña

Articles

This paper offers commentary on the appropriateness of viewing, as a human right, the authority to manage water and to participate meaningfully in watershed governance, and it takes as an example the community of Hispano farmers of the Rio Culebra watershed of Southern Colorado in the headwaters of the Upper Rio Grande. In earlier work, the authors have written about the uneasy relationship between the formal system of appropriative water rights under Colorado law and the enduring set of local water norms practiced within acequias—the traditional water governance institutions and irrigation systems of the Culebra's Hispano farmers. The present …

Indian Water Rights, Practical Reasoning, And Negotiated Settlements, Robert T. Anderson

Articles

This Article first reviews the few Indian water rights cases that the U.S. Supreme Court has decided. The Article then traces a threshold issue common to Indian water rights litigation in the federal and state courts: how to determine the purposes of a reservation for which a reserved water right should be implied. A review of major Indian water rights cases demonstrates the generally confusing state of the law in significant respects, especially with regard to the "purposes" determination.

This Article posits that the relative uncertainty in this area has created an environment in which creative, practical solutions to conflicts …

A Few Inconvenient Truths About Michael Crichton's State Of Fear: Lawyers, Causes And Science, Lea B. Vaughn

Articles

Although Crichton has lost the battle regarding global warming, his characterization of lawyers and law practice remains unchallenged. This article challenges his damning portrait of lawyers as know-nothing, self-aggrandizing manipulators of various social and environmental causes. A more nuanced examination of "cause lawyering" reveals that lawyers are not part of a vast conspiracy to grab power through the causes for which many work; in fact, the rules of professional responsibility as well as the structure of "cause lawyering" limit their power and influence. Regardless, lawyers are nonetheless vital, and generally principled, participants in the debates and causes that inform environmental …

Playing Nice: The Dos And Don'ts Of Courtroom Etiquette, Maureen A. Howard

Articles

No matter how brilliant the lawyer, impressive her credentials, thorough her case preparation, or razor-sharp her analytic skills, she risks damaging her case — and her reputation — if she fails to comply with basic courtroom etiquette. There are certain dos and don’ts of courtroom behavior that are understood by seasoned trial lawyers and expected from judges. There are also common courtesies expected by jurors of lawyers who are viewed as professional and credible. A lawyer will undoubtedly learn these behavioral norms in the trenches over time, but she is well advised to have a courtroom etiquette checklist in her …

Liar! Liar! Impeaching A Witness On Cross-Examination, Maureen A. Howard

Articles

There are certain trial moments that can set an advocate’s heart a-flutter. One is the opportunity to show the jury that an adverse witness is not to be trusted. Even better is the chance to expose the witness to be a bald-faced liar.

Welcome to the wonderful world of impeachment. Impeachment is the art of discrediting the witness on cross-examination. There are seven impeachment techniques:

• Bias, interest, and motive

• Contradictory facts

• Prior convictions — FRE 609

• Prior bad acts — FRE 608 (b)

• Prior inconsistent statements — FRE 613

• Bad character for truthfulness — …

Direct Examination: Lawyer As Director, Maureen A. Howard

Articles

A trial lawyer presenting her case in chief through direct examination is somewhat like a film director: the lawyer thoroughly analyzes the case and develops a plan for the most effective way to present the case to the jury to best advance her theme and theory. Just as no script would play out on film the exact same way in the hands of different directors, no case would be presented in exactly the same way by different trial lawyers. Yet there are constants to be found in the steps effective trial lawyers take during their case in chief when presenting …

The Prosecutorial Ethic: With Great Power Comes Great Responsibility, Maureen Howard

Articles

Although the American trial system has been likened to an arena in which mental combatants fight “to the death ” (the verdict ), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different from that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.

Racial Paradox In A Law And Society Odyssey, Mario L. Barnes

Articles

No abstract provided.

Rise Of Political Populism And The Trouble With The Legal Profession In China, Dongsheng Zang

Articles

This essay looks into recent efforts by the ruling party in China to tighten control of the judiciary, the lawyers and prosecutors under the slogan of "harmonious society" in the last couple of years. This reversed the direction of judicial reform under the leadership of Xiao Yang, during his tenure as President of the Supreme People's Court before 2008. The trouble with the legal profession in China, the essay asserts, is not only that it loses its professional autonomy thus its ability to act as a sociopolitical force that is independent from the ruling political party; but also, by virtue …

Fourth Amendment Remedial Equilibration: A Comment On Herring V. United States And Pearson V. Callahan, David B. Owens

Articles

In two recent decisions, the Supreme Court addressed remedies under the Fourth Amendment by assuming that this remedial construction did not alter the value of the underlying right meant to be protected by the Constitution. First, in Herring v. United States, the court broadened exceptions to the exclusionary rule and implied that suppression may not be required for "negligent" errors generally. Then, in Pearson v. Callahan, the Court abandoned it's "battle-of-order" rule - which required courts to consider the right before inquiring whether that right was "clearly established" at the time of the violation - when considering qualified …

Baseball's Moral Hazard: Law, Economics, And The Designated Hitter Rule, Dustin E. Buehler, Steve P. Calandrillo

Articles

No subject prompts greater disagreement among baseball fans than the designated hitter rule, which allows teams to designate a player to hit for the pitcher. The rule increases the number of hit batsmen, and some have suggested this effect is a result of "moral hazard," which recognizes that persons insured against risk are more likely to engage in dangerous behavior. Because American League pitchers do not bat, they allegedly are not deterred by the full cost of making risky, inside pitches—namely, retribution during their next at bat.

Using a law-and-economics approach, this Article concludes that the designated hitter rule creates …

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law And Economics, Steve P. Calandrillo

Articles

The recent landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW of North America, Inc. [517 U.S. 559 (1996)], State Farm [538 U.S. 408 (2003)], Philip Morris [549 U.S. 346 (2007)], and now Exxon Shipping Co. [128 S.Ct. 2605 (2008)] in 2008, has concluded that such judgments are justified to punish morally reprehensible behavior and to send a message to evildoers. The Court, however, has increasingly emphasized that the U.S. Constitution's Due Process Clause presumptively …

Policymaking By The Japanese Judiciary In The Criminal Justice Field, Daniel H. Foote

Articles

When one speaks of policymaking by the judiciary, the image that often comes to tnind is the U.S. judiciary, especially the Supreme Court of the United States. That reaction is understandable. Examples abound of policymaking by courts in the United States; and a seemingly never-ending stream of books and articles discuss, analyze, and, depending on the authors'point of view, praise or decry "policymaking" or "judicial activism" by U.S. courts. The field of criminal justice frequently is offered as a prominent example of judicial policymaking in the United States. Expansion in due process protections and other rights for criminal suspects and …