Law Commons^™

When Guilt Should Be Irrelevant: Government Overreaching As A Bar To Reprosecution Under The Double Jeopardy Clause After Oregon V. Kennedy, James F. Ponsoldt

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This article examines the effect of Oregon v. Kennedy on the Burger Court's double jeopardy jurisprudence in cases where government misconduct has interfered with the integrity of a first trial. The article proposes the complete elimination of current distinctions between mistrial and appellate reversal cases for double jeopardy analysis, on the ground that those distinctions no longer have intellectual or practical support. Moreover, against the contention of the Court in Oregon v. Kennedy that any test for overreaching necessarily would be standardless, this article proposes the adoption of a "plain error" standard. Under this test, "plain" government error, engaged in …

A Due Process Of Judicially-Authorized Presumptions In Federal Aggravated Bank Robbery Cases, James F. Ponsoldt

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Within the past fifteen years several broadly-focused articles have identified general constitutional limits, under the due process clause, on presumptions and inferences created by statute or applied by courts in trying criminal cases. Recently, in County Court of Ulster County, New York v. Allen , the Supreme Court affirmed the validity of the evidentiary devices of inference and presumptions and labeled them "a staple of our adversary system of factfinding." This suggest that to unreasonably curtail the use of circumstantial evidence in the factfinding process would place an intolerable burden on prosecutors in their efforts to prove guilt beyond a …

The Subchapter S Revision Act: An Analysis And Appraisal, Amy Morris Hess

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No abstract provided.

Freedom From Claims And Defenses: A Study In Judicial Activism Under The Uniform Commerical Code, Julian B. Mcdonnell

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The suggestion that we might today learn something about the judicial process in such a staid area of private law may seem surprising. After all, has not the Federal Trade Commission "repealed" the holder in due course rule thus tossing negotiable instruments into the dust bin? Have not the remaining technical questions been answered by the "detail and rigid precision" of the Uniform Commercial Code so lamented by Professor Gilmore? Surely, the attentive observer of the role of the courts might conclude that there is nothing left for the judicial policy maker in the field of bills and notes. The …

Proof Of Disparate Treatment Under The Age Discrimination In Employment Act: Variations On A Title Vii Theme, Mack A. Player

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The Age Discrimination in Employment Act (ADEA) was enacted in 1967 and substantially amended in 1974 and 1978. Generally stated, the ADEA prohibits employer discrimination by public and private "employers" (persons having twenty or more employees), labor unions, and employment agencies. Protection against age discrimination is granted, however, only to employees and applicants between the ages of forty and seventy. It is illegal to discriminate on the basis of age against persons within the forty-to-seventy age group regardless of whether the person favored by the discrimination is within or without the protected age group or is younger or older than …

Ironies Of Intervention, Milner S. Ball

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I have detected in our deliberations this afternoon two ironies. The first is this: the dissentient receive more protection as enemies than as citizens. As we have heard today, there is greater opportunity for the assimilation of humanitarian law if the sides engaged in internal conflict are regarded as combatants and not as fellow citizens. With the application of the law of armed conflict comes the prospect that the opponents may observe some degree of mutual respect. Such dignity as the law accords thus becomes a function of formalized hostility rather than of civil affection, of open distrust rather than …

Gradations Of Intervention In Internal Conflicts, Louis B. Sohn

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I promised to suggest a definition. It is a very modest one, simply trying to apply the language of article 51 of the Charter about self-defense to the problem of military intervention. It might be desirable to have at least a rule which would say: "No military invention by one state in the internal armed conflicts in another state is permissible except in an extreme emergency requiring instant response and subject to imimediate termination of such emergency action on the request of the United Nations or an appropriate regional organization."

Introduction To Panel Iii: Regional And Other International Organizations Responses To Internal Conflict, Louis B. Sohn

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The United Nations has been trying to do three different things. First, the United Nations had to develop the basic principles of intervention. Most of them were borrowed from the Charter of the Organization of American States, especially those on intervention, but they went much further concerning the limitations on help to guerrillas and the problems of interference by various means. The United Nations Declaration on Friendly Relations, the Declaration on Inadmissibility of Intervention, and several other documents have been broadening or clarifying the law on the subject over the last 20 years. Second, as noted previously, the United Nations …

Introduction To Panel I, Gabriel M. Wilner

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The work of this panel is to sort out the theories and arguments on the obligations of individual states, as distinguished from the international or regional community of states acting under the rules of an international organization, in dealing with internal conflicts in other states. Are states assisted in determining their obligations by existing standards of international law? The panel will wish to address itself to the central question of the content of international law standards on intervention. In doing so it may also wish to offer some definition of "internal conflict" and discuss the ramifications of the passage from …

A Message Of Hope, Dean Rusk

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So I would hope, based upon the extraordinarily interesting discussion that we have had here during this Colloquium, that we try to follow it up a bit and not be too discouraged about the modesty of certain things that might be done, but see if we cannot find some way to encapsulate, surround, isolate these internal violence situations so that they do not contribute to those great struggles which could end us all.

Administrative Procedures For Resolving Complex Policy Questions: A Proposal For Proof Dissection, Harold I. Abramson

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Many commentaries have charged that the use of conventional trial procedures in the administrative process fails to provide an effective means for resolving complex policy questions. In particular, the excessive use of cross-examination has been cited as needlessly impairing the economy and efficiency of administrative proceedings. Excessive and redundant use of such procedures has also been criticized as undermining the accuracy of results by allowing unfettered attack on adversaries’ witnesses. Clearly, current opinion of the adversary system is that it “rates truth too low among values that institutions of justice are meant to serve.”

The problems surrounding the use of …

Trial Practice And Procedure (Annual Survey Of Georgia Law), C. Ronald Ellington, T. Bart Gary

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The most significant developments in trial practice and procedure during the survey period occurred in the legislative rather than in the judicial arena. The General Assembly added a "domestic relations" section to the Georgia long arm statute and enacted other legislation to implement some of the changes in the court system brought about by the new Georgia Constitution, which became effective on July 1, 1983. These legislative changes, along with selected Georgia appellate court decisions, will be discussed starting with the topics of subject matter and personal jurisdiction and venue. This discussion will be followed by an analysis of cases …

Medical Dependency In Arizona, Mary E. Berkheiser

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Analysis of In re Cochise County Juvenile Action No. 5666-J, 650 P.2d 459 (Ariz. 1982).

Lawyers And The Abortion Debate: Presenting A Balanced View, Thomas B. Mcaffee

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The author is pleased to see the publication of A Lawyer Looks at Abortion because legal scholars have much to contribute to the understanding of public questions. Lay readers too often receive distorted impressions of legal issues from the media, and those who understand the system best are frequently too busy writing for the legal community to contribute to popular literature. Yet it is legal scholars who are best equipped to make the intricacies of law accessible to lay persons by defining and explaining legal terms and doctrine and by examining the reasoning found in relevant judicial decisions. Lawyers are …

The Use Of Statistics To Prove Intentional Employment Discrimination, Elaine W. Shoben

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Two decades after the once fiery debate about the meaning of "discrimination" in employment under Title VII of the Civil Rights Act of 1964, the issue has recently been rekindled. In simplest form, the question is whether the type of discrimination statutorily prohibited is only purposeful exclusions, or whether it includes unintended exclusions caused by tests or requirements that disproportionately affect a group defined by race, sex, or ethnicity. The Supreme Court's decision in Griggs v. Duke Power Co. resolved the question in one major area, thus causing the issue to lie dormant since 1971. Griggs held that liability under …

Why Lawyers Should Be Allowed To Advertise: A Market Analysis Of Legal Services, Jeffrey W. Stempel

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In Bates v. State Bar of Arizona, a 1977 decision, the United States Supreme Court overturned the American Bar Association's (ABA) sixty-nine-year-old prohibition of advertising by lawyers. The Bates holding invalidated comprehensive bans on lawyer advertising but left unsettled the scope of permissible regulation. While the Bates Court found attorneys' price advertising to be protected speech under the first amendment, it also stated that false and misleading advertising could be prohibited. The majority expressly declined to consider the problems of advertising claims relating to the quality of legal services.

The organized bar's reaction to Bates has been hesitant and inconsistent. …

Forrest Lacey: A Tribute From A Colleague, Joseph G. Cook

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No abstract provided.