Law Commons^™

When Rights Become Empty Promises: Promoting An Exclusionary Rule That Vindicates Personal Rights, Robert Bloom, Erin Dewey

Robert Bloom

The United States has played a leading role in the development of the exclusionary rule since Weeks v. United States (1914). The original exclusionary rule justification set out in Weeks is the vindication principle which operates so as to exclude unconstitutionally obtained evidence for the purpose of vindicating the rights of the accused. In this way the exclusion of evidence provides a remedy to the victim of an illegality by maintaining the status quo ante. The U.S. Supreme Court observed in Wolf v Colorado (1949) that “[o]f 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which …

Professional Identity As Advocacy: The Good, The Bad, The Unseen, Robert Rubinson

Robert Rubinson

The legal profession adheres to a story of a unified profession. Nevertheless, the profession has distinct professional sub-groups which repeatedly represent clients with interests adverse to those represented by attorneys who identify with other sub-groups. The idea of “professional identity as advocacy” describes how such professional sub-groups accuse opposing sub-groups of greed, self-aggrandizement, or worse. This is most notable in two areas: personal injury litigation and criminal cases. This process has two seemingly contradictory consequences. First, it renders narrow areas extraordinarily visible, thus defining popular discourse and conceptions about lawyers and law. Second, it masks vast areas of litigation and …

Representative Self-Government And The Declaration Of Independence, Alexander Tsesis

Alexander Tsesis

Legal scholars typically treat the Declaration of Independence as a purely historical document, but as this article explains, the Declaration is relevant to legislative and judicial decisionmaking. After describing why this founding document contains legal significance, I examine two contemporary legal issues through the lens of the Declaration’s prescriptions.

Section 5 of the Fourteenth Amendment grants Congress the power to make laws that enforce the civil rights clauses in the amendment’s first four sections. In City of Boerne v. Flores and its progeny, however, the Supreme Court decided that it alone can identify fundamental rights and relegated Congress’s power under …

Reclaiming The Promise Of The Indian Child Welfare Act: A Study Of State Incorporation And Adoption Of Legal Protections For Indian Status Offenders, Thalia Gonzalez

Thalia Gonzalez

No abstract provided.

Just The Facts: The Perils Of Expert Testimony And Findings Of Fact In Gay Rights Litigation, Libby Adler

Libby S. Adler

Before Perry v. Schwarzenegger, striking down Proposition 8 in California, the judicial victories for same-sex marriage all had been decided on motions for summary judgment. None required the testimony of witnesses; none produced a trial transcript; none resulted in findings of fact. But Judge Vaughn Walker of the Northern District of California presided over a trial. He made eighty separate factual findings, many of them facts about gay people drawn from the testimony of plaintiffs’ experts – and many are contradictory. The plaintiffs called experts who testified that gay people are virtually indistinguishable from straight people, arguing that “like things …

Reflections On Fair Housing Law, Tim Iglesias

Tim Iglesias

This presentation offered reflections on the state of fair housing law in light of numerous studies evaluating its effectiveness. It argues that while enforcement needs to be improved, fair housing advocates must also employ complementary strategies to reform social norms.

Just The Facts: The Perils Of Expert Testimony And Findings Of Fact In Gay Rights Litigation, Libby Adler

Libby S. Adler

ABSTRACT Just the Facts: The Perils of Expert Testimony and Findings of Fact in Gay Rights Litigation Before Perry v. Schwarzenegger, striking down Proposition 8 in California, the judicial victories for same-sex marriage all had been decided on motions for summary judgment. None required the testimony of witnesses; none produced a trial transcript; none resulted in findings of fact. But Judge Vaughn Walker of the Northern District of California presided over a trial. He made eighty separate factual findings, many of them facts about gay people drawn from the testimony of plaintiffs’ experts – and many are contradictory. The plaintiffs …

The Due Process Rights Of Residential Tenants In Mortgage Foreclosure Cases, Henry Rose

Henry Rose

The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases

(Abstract)

A group who have been hard hit by the recent mortgage foreclosure crisis in the United States are residential tenants. It is estimated that forty percent of the households who have been displaced by mortgage foreclosures are tenants.

Some tenants have been evicted from their homes without notice pursuant to foreclosures of the mortgages on the buildings where they reside. In states which require judicial supervision of mortgage foreclosures, it likely violates basic principles of procedural Due Process for tenants to be evicted without notice. In states that …

When Rights Become Empty Promises: Promoting An Exclusionary Rule That Vindicates Personal Rights, Robert Bloom, Erin Dewey

Robert M. Bloom

The United States has played a leading role in the development of the exclusionary rule since Weeks v. United States (1914). The original exclusionary rule justification set out in Weeks is the vindication principle which operates so as to exclude unconstitutionally obtained evidence for the purpose of vindicating the rights of the accused. In this way the exclusion of evidence provides a remedy to the victim of an illegality by maintaining the status quo ante. The U.S. Supreme Court observed in Wolf v Colorado (1949) that “[o]f 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which …

Due Process In Civil Commitments, Alexander Tsesis

Alexander Tsesis

In one of its most controversial decisions to date, United States v. Comstock, the Roberts Court upheld a federal civil commitment statute requiring only an intermediate burden of proof. The statute provided for the postsentencing confinement of anyone proven by “clear and convincing evidence” to be mentally ill and dangerous. The law relied on a judicial standard established more than thirty years before. The majority in Comstock missed the opportunity to reassess the precedent in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood …