Courts Commons^™

The Principled Exception And The Forgotten Criterion, Steve Coughlan

Articles, Book Chapters, & Popular Press

The principled exception to the hearsay rule is routinely described as being settled by the "twin criteria" of necessity and reliability. In fact a third criterion is also — or at least ought to be — at play: that admitting the evidence through hearsay would not undermine any other rule of evidence. The Court has made reference to this third criterion in the past, but it has largely been ignored in both Supreme Court and lower court decisions. The recent judgement in Couture depends in a limited way on that question, and so it marks an opportunity to articulate the …

Book Review, Erin Murphy

Journal of Legal Education

No abstract provided.

Picking Up The Pieces Of The Gordian Knot: Towards A Sensible Merger Methodology, Bruce A. Antkowiak

ExpressO

This question of merger is one of the most perplexing that courts face in the criminal sentencing process. This article not only explores that question but proposes specific new methods a court may use to resolve this question in a way consonant with the Constitution and the intent of the legislature.

The article takes as its starting point a brilliant analysis of the Double Jeopardy doctrine set out by Professor Ann Poulin of Villanova Law School in an article entitled Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595 (2006). Professor Poulin’s work demonstrates …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Panel Report: National Security Secrecy In The Courts: A Comparative Perspective From Israel And Ireland, Peter Raven-Hansen

Cardozo Public Law, Policy & Ethics Journal

The article examines how democratic nations, including Israel, Ireland, and the United States, balance national security secrecy with the rule of law in terrorism prosecutions. It highlights the challenges of using secret evidence in criminal trials while maintaining fair procedures, comparing the legal frameworks and practices of these countries. The analysis reveals common issues, such as the tension between protecting sensitive information and ensuring defendants' rights, and underscores the need for transparency and procedural integrity in terrorism cases.

Panel Report: Issues In Article Iii Courts, Debra A. Livingston

Cardozo Public Law, Policy & Ethics Journal

The article explores the challenges Article III courts face in balancing national security interests with procedural due process when handling cases involving classified information, particularly in terrorism-related prosecutions. It examines the logistical, constitutional, and evidentiary issues arising from the use of secret evidence, raising questions about the adequacy of current legal frameworks and the potential need for alternative procedural mechanisms.

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.

Searches & The Misunderstood History Of Suspicion & Probable Cause: Part One, Fabio Arcila

ExpressO

This article, the first of a two-part series, argues that during the Framers’ era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment’s restrictions. Learned treatises in particular, and to a lesser extent a …

American Military Justice And International Criminal Court Complementarity: The Case Of Ucmj Article 60, Allen J. Dickerson

ExpressO

Although the American military is effectively one of the most potent of international institutions, discussions of its regulation have been oddly domestic. The court-martial – the single most important institution for disciplining military forces, preventing atrocities and punishing offenders – has seen its jurisdiction and procedures hotly debated, but most often by those in uniform or individuals interested in domestic military policy. This paper aims to internationalize the discussion, recognizing that the discipline of American military forces is of major concern to both international law and U.S. foreign policy. By exploring the interaction between a major innovation in international law …

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …

Wishing Petitioners To Death: Factual Misrepresentations In Fourth Circuit Capital Cases, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann

ExpressO

This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.

The Decision Maker Matters: An Empirical Examination Of The Way The Role Of The Judge And The Jury Influence Death Penalty Decision-Making, William J. Bowers, Wanda D. Foglia, Jean E. Giles, Michael E. Antonio

Washington and Lee Law Review

No abstract provided.

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Adding Fuel To The Fire: United States V. Booker And The Crack Versus Powder Cocaine Sentencing Disparity, Briton K. Nelson

University of Richmond Law Review

No abstract provided.

The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh

ExpressO

In the article, I discuss the potential use of public opinion polls to measure the discriminatory effect of certain questions in jury selection. While the laws surrounding race and gender based jury selection are known to most lawyers, there has been little scrutiny on questions that might be posed to potential jurors that are facially neutral, yet have a discriminatory impact. This article examines a number of such questions and offers a statistical test to determine whether a proposed question has, in fact, a 98% certainty of having a discriminatory effect if relied upon in jury selection.

Flipping A Coin: A Solution For The Inherent Unreliability Of Eyewitness Identification Testimony, Noah A. Clements

ExpressO

By most accounts, mistaken eyewitness identification is the leading cause of wrongful convictions in the U.S. As DNA evidence frees ever more people wrongfully convicted on the basis of mistaken identification testimony, it is worth asking: “What about those cases where there is no DNA evidence?” Study after study shows that eyewitness identifications are unreliable. Courts pay lip service to the concept of reliability, but even after identifications are tainted by suggestion, very few courts actually exclude this tainted identification testimony.

And identifications are powerful. Jurors tend to believe identification testimony more than any other kind. And judges are people …

Fixing The Constable's Blunder: Can One Trial Judge In One County In One State Nudge A Nation Beyond The Exclusionary Rule?, H. Mitchell Caldwell

BYU Law Review

No abstract provided.

Cambodia At A Crossroads: How Repealing Untac Article 63, Cambodia's Current Defamation Law, Will Lead To A More Vigorous Democracy, Alicia A. Adornato

ExpressO

Cambodia’s current criminal defamation law is an impermissible intrusion of Cambodians’ constitutionally guaranteed right to freedom of expression. The law itself is a remnant of the United Nations Transitional Authority in Cambodia. Moreover it is now being used as a tool to silence the government’s political opposition through a weak judiciary system, leaving in its wake a democracy afraid to exercise its constitutionally guaranteed rights. This law is an unconstitutional violation for several reasons: first, it violates the right to freedom of expression which is guaranteed in Cambodia’s Constitution. Secondly, it is incompatible with Cambodia’s human rights obligations under the …

Bringing Human Rights Abusers To Justice In U.S. Courts: Carrying Forward The Legacy Of The Nuremberg Trials, Sandra Coliver

Cardozo Law Review

No abstract provided.

Remarks, Eli M. Rosenbaum

Cardozo Law Review

No abstract provided.

From Nuremberg To Tokyo: Some Reflections On The Tokyo Trial (On The Sixtieth Anniversary Of The Nuremberg Trials), Zhang Wanhong

Cardozo Law Review

No abstract provided.

The Nuremberg Trials: A Reappraisal And Their Legacy: An Introduction, Sheri P. Rosenberg

Cardozo Law Review

No abstract provided.

Transitional Justice: Postwar Legacies, Ruti Teitel

Cardozo Law Review

No abstract provided.

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

Rutgers Law School (Newark) Faculty Papers

Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury …

Manson V. Brathwaite: The Supreme Court's Misunderstanding Of Eyewitness Identification, 39 J. Marshall L. Rev. 539 (2006), Ruth Yacona

UIC Law Review

No abstract provided.

Adjudicated On The Merits?: Why The Aedpa Requires State Courts To Exhibit Their Reasoning, 39 J. Marshall L. Rev. 995 (2006), Ezra Spilke

UIC Law Review

No abstract provided.

Dostoyevsky And The Therapeutic Jurisprudence Confession, 40 J. Marshall L. Rev. 41 (2006), Amy D. Ronner

UIC Law Review

No abstract provided.

Second Chance For Justice: Reevaluation Of The United States Double Jeopardy Standard, 40 J. Marshall L. Rev. 371 (2006), Andrea Koklys

UIC Law Review

No abstract provided.