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Articles 811 - 840 of 976

Full-Text Articles in Jurisprudence

United States V. Bean: Shoveling After The Elephant?, Pannal A. Sanders Oct 2003

United States V. Bean: Shoveling After The Elephant?, Pannal A. Sanders

ExpressO

Thomas Bean’s felony conviction in Mexico implicated provisions of federal law that preclude certain persons, including specified felons, from owning or trading in firearms and ammunition which have been transported in interstate commerce. 18 USC Sec. 922. Affected persons can seek relief from the federal firearms disability by invoking procedures established in 18 USC Sec. 925(c) under the Dept of Treasury, Director of Alcohol, Tobacco and Firearms (“ATF”). Beginning in 1992, Congress has enacted provisions annually in the ATF’s appropriations laws that ban it from investigating or acting upon Sec. 925(c) applications from individuals. Section 925(c) contains provisions for judicial …

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Dignity And Desert In Punishment Theory, Kyron J. Huigens Oct 2003

Dignity And Desert In Punishment Theory, Kyron J. Huigens

Articles

No abstract provided.

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Exonerations Change Judicial Views On Ineffective Assistance Of Counsel, Adele Bernhard Oct 2003

Exonerations Change Judicial Views On Ineffective Assistance Of Counsel, Adele Bernhard

Articles & Chapters

Law evolves more slowly than pop culture or public attitude. Because most exonerations have not resulted in written legal opinions, their impact is slowly seeping into case law. However, courts are influenced by the same news that sways the rest of us. Even without explicitly referring to innocence or wrongful convictions, modern trial courts are undoubtedly more likely to admit expert testimony on the question of eyewitness identification because they are painfully aware of just how easily such witnesses - no matter how honest or passionate - can be wrong. They are certainly more inclined to view confessions suspiciously, especially …

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The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen Sep 2003

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.

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Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel Sep 2003

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

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The Innocence Revolution And Our "Evolving Standards Of Decency" In Death Penalty Jurisprudence, Mark A. Godsey, Thomas Pulley Jan 2003

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 …

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Tracking The Circulatory Of Confession Jurisprudence After Massiah & (And) Miranda: Can A Superficial Application Of Property Law Make Sense Out Of Nonsense?, Rory Bahadur Jan 2003

Tracking The Circulatory Of Confession Jurisprudence After Massiah & (And) Miranda: Can A Superficial Application Of Property Law Make Sense Out Of Nonsense?, Rory Bahadur

St. Thomas Law Review

After Miranda v. Arizona and Massiah v. United States, there were arguably three doctrinally separate methodologies for determining the admissibility of confessions in criminal proceedings. The interaction of these three doctrines has generated a complex, contradictory, somewhat inexplicable, and chaotic jurisprudence. This paper re-examines the post- Miranda interaction of the three doctrines, and argues that basic property law provides a conceptual framework for reconciling what appears to be an otherwise arbitrary and unpalatable collection of Supreme Court decisions. Section one briefly examines the totality of the circumstances test and the Miranda and Massiah decisions themselves, not from the standpoint of …

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In The Wake Of Kyllo V. United States: The Future Of Thermal Imaging Cameras, 36 J. Marshall L. Rev. 507 (2003), Paul Kleppetsch Jan 2003

In The Wake Of Kyllo V. United States: The Future Of Thermal Imaging Cameras, 36 J. Marshall L. Rev. 507 (2003), Paul Kleppetsch

UIC Law Review

No abstract provided.

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Behind The Words: Interpreting The Hobbs Act Requirement Of "Obtaining Of Property From Another", 36 J. Marshall L. Rev. 295 (2003), Kristal S. Stippich Jan 2003

Behind The Words: Interpreting The Hobbs Act Requirement Of "Obtaining Of Property From Another", 36 J. Marshall L. Rev. 295 (2003), Kristal S. Stippich

UIC Law Review

No abstract provided.

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Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl Jan 2003

Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl

Cardozo Law Review

This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests …

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Ten Years Of Payne: Victim Impact Evidence In Capital Cases, John H. Blume Jan 2003

Ten Years Of Payne: Victim Impact Evidence In Capital Cases, John H. Blume

Cornell Law Faculty Publications

A little over a decade ago, in Payne v. Tennessee, the U.S. Supreme Court cleared the way for capital sentencing juries to consider “victim impact evidence” (VIE). Reversing its prior decisions in Booth v. Maryland and South Carolina v. Gathers, a six to three majority of the Court held that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Part I of this Article will discuss the Court’s prior decisions in Booth and Gathers, and Parts II and III will …

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A Jurisprudence Of Dangerousness, Christopher Slobogin Jan 2003

A Jurisprudence Of Dangerousness, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article addresses the state's police power authority to deprive people of liberty based on predictions of antisocial behavior. Most conspicuously exercised against so-called "sexual predators," this authority purportedly justifies a wide array of other state interventions as well, ranging from police stops to executions. Yet there still is no general theory of preventive detention. This article is a preliminary effort in that regard. The article first surveys the various objections to preventive detention: the unreliability objection; the punishment-in-disguise objection; the legality objection; and the dehumanization objection. None of these objections justifies a complete prohibition on the state's power to …

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Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein Jan 2003

Fifteen Years After The Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective And Just Narcotics Sentencing Perspectives On The Federal Sentencing Guidelines And Mandatory Sentencing, Ian Weinstein

Faculty Scholarship

Federal criminal sentencing has changed dramatically since 1988. Fifteen years ago, judges determined if and for how long a defendant would go to jail. Since that time, changes in substantive federal criminal statutes, particularly the passage of an array of mandatory minimum penalties and the adoption of the federal sentencing guidelines, have limited significantly judicial sentencing power and have remade federal sentencing and federal criminal practice. The results of these changes are significantly longer federal prison sentences, as was the intent of these reforms, and the emergence of federal prosecutors as the key players in sentencing. Yet, at the same …

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Criminal Law And The Supreme Court: An Essay On The Jurisprudence Of Byron White, Kate Stith-Cabranes Jan 2003

Criminal Law And The Supreme Court: An Essay On The Jurisprudence Of Byron White, Kate Stith-Cabranes

University of Colorado Law Review

No abstract provided.

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Victim Wrongs: The Case For A General Criminal Defense Based On Wrongful Victim Behavior In An Era Of Victims' Rights, Aya Gruber Jan 2003

Victim Wrongs: The Case For A General Criminal Defense Based On Wrongful Victim Behavior In An Era Of Victims' Rights, Aya Gruber

Publications

Criminal law scholarship is rife with analysis of the victims' rights movement. Many articles identify with the outrage of victims harmed by deviant criminal elements. Other scholarly pieces criticize the movement's denuding of defendants' constitutional trial rights. The point upon which proponents and opponents of the movement tend to agree, however, is that the victim should never be blamed for the crime. The helpless, harmed, innocent victim is someone with whom we can all identify and someone to whom we can all express sympathy. Victim blaming, by all accounts, is an act of legal heresy to feminists, victim advocates, and …

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Threats, Free Speech, And The Jurisprudence Of The Federal Criminal Law, G. Robert Blakey, Brian J. Murray Nov 2002

Threats, Free Speech, And The Jurisprudence Of The Federal Criminal Law, G. Robert Blakey, Brian J. Murray

BYU Law Review

No abstract provided.

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Productive Silence On Carl Schmitt: Constrained Ignorance Or Concluded Reappraisal? A Reply To Detlev F. Vagts, Carl Schmitt In Context: Reflections On A Symposium, Emanuel Richter Aug 2002

Productive Silence On Carl Schmitt: Constrained Ignorance Or Concluded Reappraisal? A Reply To Detlev F. Vagts, Carl Schmitt In Context: Reflections On A Symposium, Emanuel Richter

Cardozo Law Review

No abstract provided.

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United States V. Drayton: Supreme Court Upholds Standards For Police Conduct During Bus Searches, Andera K. Mitchell Jun 2002

United States V. Drayton: Supreme Court Upholds Standards For Police Conduct During Bus Searches, Andera K. Mitchell

American University Law Review

No abstract provided.

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The Concept Of Equality In Civil Procedure, William B. Rubenstein May 2002

The Concept Of Equality In Civil Procedure, William B. Rubenstein

Cardozo Law Review

No abstract provided.

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Homicide In Aretaic Terms, Kyron J. Huigens Apr 2002

Homicide In Aretaic Terms, Kyron J. Huigens

Articles

No abstract provided.

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Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence Of Social Discovery, John O. Mcginnis Mar 2002

Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence Of Social Discovery, John O. Mcginnis

Articles

This Article offers a retrospective on the Rehnquist Court. It argues that the Rehnquist Court has been pursuing a coherent jurisprudence that invigorates decentralization and the private ordering of social norms that Alexis De Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution. In four disparate areas-federalism, freedom of association, the religion clauses, and the balance of power between juries and judges-the Court is helping sustain a civil order that bubbles up from state governments or from citizens voluntarily gathered together or randomly selected. The Article is the first to …

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Causality And Responsibility, Glenn Shafer Jul 2001

Causality And Responsibility, Glenn Shafer

Cardozo Law Review

No abstract provided.

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Voluntary Intoxication In Florida: Public Policy Versus Due Process And Why Florida's Intoxication Statute Cannot Withstand A Constitutional Challenge, Michael L. Elkins Jan 2001

Voluntary Intoxication In Florida: Public Policy Versus Due Process And Why Florida's Intoxication Statute Cannot Withstand A Constitutional Challenge, Michael L. Elkins

St. Thomas Law Review

This comment examines the substance of the opinions in Egelhoff and juxtaposes the Florida statutory scheme against the proper constitutional analysis. The Egelhoff majority has done little to provide a workable constitutional backdrop from which other state statutes banning evidence of voluntary intoxication may be categorized. Part II of this comment provides the historical background for the voluntary intoxication defense. Part I initially examines the factual and legal background of the Egelhoff case as set forth by the Montana Supreme Court. Part IV then provides an analysis of the opinions authored by the United States Supreme Court. This section will …

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Procedural Reforms In Capital Cases Applied To Perjury, 34 J. Marshall L. Rev. 453 (2001), Steven Clark Jan 2001

Procedural Reforms In Capital Cases Applied To Perjury, 34 J. Marshall L. Rev. 453 (2001), Steven Clark

UIC Law Review

No abstract provided.

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Righting Illinois' Wrongs: Suggestions For Reform And A Call For Abolition, 34 J. Marshall L. Rev. 469 (2001), Sharone Levy Jan 2001

Righting Illinois' Wrongs: Suggestions For Reform And A Call For Abolition, 34 J. Marshall L. Rev. 469 (2001), Sharone Levy

UIC Law Review

No abstract provided.

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Punishing Thought: A Narrative Deconstructing The Interpretive Dance Of Hate Crime Legislation, 35 J. Marshall L. Rev. 123 (2001), Anne B. Ryan Jan 2001

Punishing Thought: A Narrative Deconstructing The Interpretive Dance Of Hate Crime Legislation, 35 J. Marshall L. Rev. 123 (2001), Anne B. Ryan

UIC Law Review

No abstract provided.

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The Doctrine Of Non-Inquiry And The Preservation Of Human Rights:-Is There Room For Reconciliation?, Michael S. Topiel Jan 2001

The Doctrine Of Non-Inquiry And The Preservation Of Human Rights:-Is There Room For Reconciliation?, Michael S. Topiel

Cardozo Journal of International and Comparative Law

The note explores the tension between individual human rights under international law and state interests in combating cross-border crime, focusing on the doctrine of noninquiry in extradition cases. It argues that while the Convention Against Torture imposes obligations to prevent extradition to situations of torture, the doctrine of noninquiry—where courts avoid scrutinizing the requesting state’s justice system—remains crucial for maintaining separation of powers and diplomatic relations. The analysis highlights the balancing act between protecting human rights and ensuring international cooperation in law enforcement.

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Constitutional Formalism And The Meaning Of Apprendi V. New Jersey, Benjamin Priester Jan 2001

Constitutional Formalism And The Meaning Of Apprendi V. New Jersey, Benjamin Priester

Journal Publications

In June 2000, the United States Supreme Court decided Apprendi v. New Jersey,' a case that likely will have a significant impact on the administration of criminal justice in federal and state courts. The Court imposed a procedural limitation on prosecutors by restricting the types of facts that may be proven at sentencing rather than at trial. Specifically, the Court adopted a constitutional principle that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum" is an element of the offense of conviction. Under wellestablished constitutional doctrine, the Constitution's full procedural protections, especially the necessity of …

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Joseph In Lawyerland, Robin West Jan 2001

Joseph In Lawyerland, Robin West

Georgetown Law Faculty Publications and Other Works

As Alice wanders through Wonderland in an unreal space in real time-a dream-learning backward truths from illogical creatures who speak in paradoxes, so Joseph figuratively wanders through lawyerland in an unreal time, but in a very real space-Manhattan-conversing with his thinly fictionalized friends, all of whom happen to be lawyers, about their lives and practices in law. As Joseph's lawyers talk with him about the law they practice, they uncover, through White Rabbit and Cheshire Cat-like illogical precision, a chaotic, unkempt, unconscionably reckless, often cruel, and sometimes pathological legal wilderness. The legal terrain these lawyers occupy is not an inviting …

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Reconceptualizing Federal Habeas Corpus For State Prisoners: How Should Aedpa's Standard Of Review Operate After Williams V. Taylor?, Adam N. Steinman Jan 2001

Reconceptualizing Federal Habeas Corpus For State Prisoners: How Should Aedpa's Standard Of Review Operate After Williams V. Taylor?, Adam N. Steinman

Faculty Scholarship

This Article aims to expand the debate over the proper standard of review that applies in state prisoner habeas corpus actions in federal court. To date, this debate has centered on whether federal habeas courts should defer to the state court's resolution of federal legal questions, or whether federal habeas courts should assess and apply federal law de novo. However, in Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a deferential standard of review that precludes a federal habeas court from granting relief based simply on its …

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