Law Commons^™

The Innocence Revolution And Our "Evolving Standards Of Decency" In Death Penalty Jurisprudence, Mark A. Godsey, Thomas Pulley

Faculty Articles and Other Publications

One cannot adequately consider whether the current administration of the death penalty in America measures up to modern notions of decency without doing so in light of the revolution that has occurred over the past decade in the American criminal-justice system - the Innocence Revolution. Up through the 1990s, as a society, we believed our criminal-justice system was highly accurate, but the recent advent of DNA testing and other advanced technologies has demonstrated the naiveté of such beliefs. This article will discuss the history of the Innocence Revolution, examine the impact of that revolution on our society, and ask: "What …

The New Frontier Of Constitutional Confession Law - The International Arena: Exploring The Admissibility Of Confessions Taken By U.S. Investigators From Non-Americans Abroad, Mark A. Godsey

Faculty Articles and Other Publications

This Article is part two in an ongoing series. Part I, published at 51 DUKE L. J. 1703 (2002), argued that Miranda warnings should not be strictly required when U.S. agents interrogate non-U.S. citizens abroad. This Article picks up where the first left off, and asks the question: "In the absence of Miranda, do any provisions in the Bill of Rights restrict the ability of U.S. agents to obtain confessions from non-Americans abroad?"

The Article begins by examining the back up or default rules to Miranda in the domestic setting. These rules are the "due process involuntary confession rule," which …

A Future Foretold: Neo-Aristotelian Praise Of Postmodern Legal Theory, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

Review Of Explaining The English Revolution: Hobbes And His Contemporaries, Donald J. Herzog

Reviews

The explosion of primary texts from seven- teenth-century England continues to trigger an explosion of scholarly treatments today. For good reason, too: Lots of the primary texts are amazing, and not just those tired old warhors- es, Hobbes's Leviathan and Locke's Second Treatise. As fun and challenging as the primary texts are, you are forgiven a touch of skepticism if you wonder just what the latest author has to add to our understanding. You might redouble your skepticism if you just glance at Mark Stephen Jendrysik's table of contents, offering chapters on Winstanley, Milton, Cromwell, Filmer, and Hobbes, and zeroing …

Coercion, Contract And Free Labor In The Nineteenth Century (A Response To Gunther Peck), Robert J. Steinfeld

Journal Articles

No abstract provided.

Gunther Peck's Reinventing Free Labor: Padrones And Immigrant Workers In The North American West, 1880–1930, Robert J. Steinfeld

Book Reviews

No abstract provided.

Standard Terms Contracting In The Global Electronic Age: European Alternatives, James Maxeiner

All Faculty Scholarship

This article examines American, European Union and German standard terms laws from an American perspective. It considers not only current law, but significant aspects of the development of these bodies of law. It sets out general issues involved in standard terms laws and summarizes American law. It notes the origin of American concepts in Europe and examines standard terms in the struggle over revision of the Uniform Commercial Code. It looks at the law of the European Union and its origin in the consumer movement. It considers in detail the law of one Member State as an example, that of …

How Should We Theorize Class Interests In Thinking About Professional Regulation: The Early Naacp As A Case Example, Susan Carle

Articles in Law Reviews & Other Academic Journals

INTRODUCTIONThe Editors of the Cornell Journal of Law and Public Policy have specifically requested that I address in this essay some research I finished quite a while ago, but to which I hope to return in the near future, concerning the history of the first national legal committee of the National Association for the Advancement of Colored People (NAACP). (1) Therefore, I plan to raise a big picture question left unanswered by that earlier research here: how should we understand lawyers' class interests in relation to their involvement in the development of legal ethics rules concerning public interest law practice? …

The Inter-American Human Rights System: Activities From Late 2000 Through October 2002, Richard J. Wilson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Designing Judicial Review: A Comment On Schauer, Emily Sherwin

Cornell Law Faculty Publications

In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.

Deception In Morality And Law, Larry Alexander, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

The Winchester Law School, 1824-1831, William Hamilton Bryson

Law Faculty Publications

On March 5, 1824, Henry St. George Tucker was elected by the General Assembly of Virginia to be the judge of the circuit superior court of chancery to sit in Winchester and Clarksburg. Tucker had built up a very successful law practice in Winchester, where he had settled in 1802 upon his admission to the bar. He had also built up a large family; he had six sons and two daughters as well as three children who died young. The elevation to the bench resulted in an increase in professional status, but it also resulted in a substantial decrease in …

Justification And Excuse, Law And Morality, Mitchell N. Berman

All Faculty Scholarship

Anglo-American theorists of the criminal law have concentrated on-one is tempted to say "obsessed over"-the distinction between justification and excuse for a good quarter-century and the scholarly attention has purchased unusually widespread agreement. Justification defenses are said to apply when the actor's conduct was not morally wrongful; excuse defenses lie when the actor did engage in wrongful conduct but is not morally blameworthy. A near consensus thus achieved, theorists have turned to subordinate matters, joining issue most notably on the question of whether justifications are "subjective"-turning upon the actor's reasons for acting-or "objective"-involving only facts independent of the actor's beliefs …

Contextualizing Bias Crimes: A Social & Theoretical Perspective, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

Getting Off The Dole: Why The Court Should Abandon Its Spending Doctrine And How A Too-Clever Congress Could Provoke It To Do So, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Converted Or Unconverted: To Whom Do We Preach?, Amy L. Wax

All Faculty Scholarship

No abstract provided.

Cultural Projects And Structural Transformation In The Legal Profession, W. Wesley Pue

All Faculty Publications

This paper explores the history of professional formation amongst lawyers, pointing to the surprising conclusions that contemporary legal professionalism bears little continuity with supposed roots in British professionalism and that one of the major motors driving professionalism was related to a project of cultural transformation in state and society at large. Whilst legal professions appear exclusionary and xenophobic from an outside perspective, the desire to control difference has deeper, more fully cultural roots, than arguments from self-interest per se might suggest.

Innocent Until Proven Guilty: The Origins Of A Legal Maxim, Kenneth Pennington

Scholarly Articles

The maxim,' Innocent until proven guilty', has had a good run in the twentieth century. The United Nations incorporated the principle in its Declaration of Human Rights in 1948 under article eleven, section one. The maxim also found a place in the European Convention for the Protection of Human Rights in 1953 [as article 6, section 2] and was incorporated into the United Nations International Covenant on Civil and Political Rights [as article 14, section 2]. This was a satisfying development for Americans because there are few maxims that have a greater resonance in Anglo-American, common law jurisprudence. The Anglo-American …

A Brief History Of Gender Law Journals: The Heritage Of Myra Bradwell's Chicago Legal News, Richard H. Chused

Articles & Chapters

No abstract provided.

Caesar, Succession, And The Chastisement Of Rulers, Patrick Martin, John M. Finnis

Journal Articles

Julius Caesar's reign as dictator and praefectus morum for life ended with his assassination in 44 B.C. It was preceded by over four hundred years of consular rule, a system of executive government by two consuls, elected for a one-year term. Consular government began in 509 B.C., ending the hundred-year rule of the Tarquin kings. Three works printed in 1594 recalled for English readers the overthrow of the Tarquins and the establishing of consular government. One was dedicated to the Earl of Essex. Another, by William Shakespeare, was dedicated to Essex's close companion, the Earl of Southampton. The third work …

Traditional Equity And Contemporary Procedure, Thomas O. Main

Scholarly Works

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …

The Role Of Justice In The Former Yugoslavia: Antidote Or Placebo For Coercive Appeasement?, Paul Williams, Patricia Taft

Articles in Law Reviews & Other Academic Journals

Throughout the 1990's, the approach of the European Union and the United States to the conflicts in the former Yugoslavia was one of coercive appeasement. By most professional and historical accounts, this approach was a failed one, with the consequences that over 250,000 civilians were killed, thousands raped and millions displaced. Throughout the conflict, the institutions of justice created by the international community frequently served as a mere placebo rather than an antidote to the dominant approach of coercive appeasement. Frequently key policymakers actively sought to constrain the role of justice during the peace building process. At times during the …

International Law Issues In Death Penalty Defense, Richard J. Wilson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Serpent Beguiled Me: A History Of The Entrapment Defense, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …

Law And What I Truly Should Decide, John M. Finnis

Journal Articles

Suppose we tried to think about law without trying first to describe it or to work out what the concept of it is. Suppose we asked instead whether, and if so why, and when, we-or more precisely each one of us-should favor introducing, having, endorsing, maintaining, complying with and enforcing it. We would be trying to think about law, about something not limited to our own time and town, but as something that people of any time and place of which we are aware would, as we can understand, have the same or similar need for and reasons to comply …

The Dimension Of The Supreme Court, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In a paper published in the Proceedings of the National Academy of Sciences, Lawrence Sirovich introduced two novel mathematical techniques to study patterns in recent Supreme Court decisions. One of these methods, information theory, has never been applied previously. The other method, singular value decomposition, is closely related to other methods that have previously been employed.

In this paper I give an explication of these two methods and evaluate their use in the context of understanding the Supreme Court. I conclude that information theory holds some promise for furthering our understanding but singular value decomposition, as applied by Sirovich, is …

Filling In The Blank Spots On Powell's And Stegner's Maps: The Role Of Modern Indian Tribes In Western Watersheds, Charles Wilkinson

Publications

No abstract provided.

Lightening The Load: In The Georgia Supreme Court, R. Perry Sentell Jr.

Scholarly Works

The Supreme Court of Georgia enjoys legendary status in perpetuating both "law" and "justice" for the citizens it serves. It functions as an institution of rich tradition, and it operates from a perspective of historic proportions. The court's heritage exudes a profusion of shaping facets, facets coalescing to yield an indelible profiles of Georgia's juristic content. That profile reflects such characteristics as the court's authoritative underpinnings: the legends of judicial fame to whom the court periodically returns for lessons of wisdom. Other distinctions focus upon the court's output: the per curiam opinion, for example, constitutes an expressive peculiarity of historical …

The Making Of The Second Rehnquist Court: A Preliminary Analysis, Thomas W. Merrill

Faculty Scholarship

The Supreme Court is implicitly assumed to have a certain unity of character under each Chief Justice. Hence, we refer to the "Marshall Court," the "Warren Court," and the "Rehnquist Court." A closer look at history reveals that this assumption of a natural Court defined by the tenure of each Chief Justice is often misleading. The Marshall Court had a different character late in its life than it did in its early years. Similarly, the Warren Court became distinctively more liberal and activist after 1962 when Felix Frankfurter retired and was replaced by Arthur Goldberg.

Although the Rehnquist Court is …