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Articles 151 - 166 of 166
Full-Text Articles in Jurisprudence
Postscript: In Budget Disputes Between Elected State Officials, Will The Rule Of Law Prevail., Gregory E. Maggs
Postscript: In Budget Disputes Between Elected State Officials, Will The Rule Of Law Prevail., Gregory E. Maggs
St. Mary's Law Journal
Abstract Forthcoming.
The Scope Of The Eighth Amendment Does Not Include A Per Se Bar To The Use Of Victim Impact Evidence In The Sentencing Phase Of A Capital Trial., Jimmie O. Clements Jr.
The Scope Of The Eighth Amendment Does Not Include A Per Se Bar To The Use Of Victim Impact Evidence In The Sentencing Phase Of A Capital Trial., Jimmie O. Clements Jr.
St. Mary's Law Journal
In Payne v. Tennessee, the United States Supreme Court held the scope of the Eighth Amendment does not include a per se bar to the use of victim impact evidence in the sentencing phase of a capital trial. As a result of Payne, the realm of information admissible during the sentencing phase of a capital trial now includes victim impact evidence. The use of victim impact evidence improperly diverts the sentencer’s attention away from the defendant’s moral blameworthiness to the victim’s character and reputation. Although advocates of victim’s rights may see this decision as a victory, the reasoning of the …
A Trial Court's Refusal To Question Prospective Jurors About The Specific Contents Of Pretrial Publicity Which They Had Read Or Heard Did Not Violate A Defendant's Sixth Amendment Right To An Impartial Jury, Or Fourteenth Amendment Right To Due Process., Karen A. Cusenbary
St. Mary's Law Journal
In Mu'Min v. Virginia, the United States Supreme Court held a defendant has no right to ask jurors about the potential influence of prejudicial pretrial publicity. A defendant may ask only if the jurors can remain impartial. The Court mandates that overturning a trial court’s jury selection is allowable only if manifest error renders the trial fundamentally unfair. The Court did not find that the case involved sufficient public passion to necessitate a more extensive jury examination by the trial court to include inquiries involving the effect of pretrial publicity. The ruling in Mu'Min leaves too much discretion to the …
Nude Dancing Conveying A Message Or Eroticism And Sexuality Is Protected By The First Amendment But Can Be Limited Under State Police Powers Provided The Government Establishes A Substantial, Content-Neutral Purpose., Fred S. Wilson
St. Mary's Law Journal
In Barnes v. Glen Theatre, Inc., the Supreme Court held the First Amendment protects nude dancing as conveying an expressive message, but state police powers may limit protection if the government establishes a substantial, content-neutral purpose. It is a principal of constitutional law where an actor intends to convey a message by expressive conduct, the First Amendment protection extends to that expression. Traditionally, time, place, and manner regulations restricting expressive conduct based on either the subject-matter of the message or the viewpoint of the actor receive content-based classification. However, content-based regulation of expressive conduct is constitutional only when narrowly drawn …
An Independent And Adequate Procedural Rule Bars A State Prisoner, Who Has Defaulted His Entire Appeal, From Asserting A Federal Claim Unless The Prisoner Demonstrates Cause For, And Actual Prejudice Resulting From, The Procedural Default, Or In The Alternative, Proves A Fundamental Miscarriage Of Justice Will Result If The Federal Habeas Court Fails To Hear The Claim., Jared R. V. Woodfill
St. Mary's Law Journal
The current jurisprudential regime accepts a blanket procedural default policy which denies the federal habeas court its proper constitutional role. An ideological coup d’etat is needed which reappraises the modern procedural default doctrine and supplants it with a rule in the spirit of Fay v. Noia. Such a revolution would emphasize the federal habeas court’s role as a defender of constitutional rights. In an era of multifarious litigation and sociological jurisprudence, a habeas prisoner should not lose his life because a negligent public defender failed to preserve the right in procedural formaldehyde. On April 23, 1982, a court convicted Roger …
What's Left?, Guyora Binder
What's Left?, Guyora Binder
Journal Articles
Addressing the future of radical politics at the end of the cold war, this article offers a reconstruction of radical theory around the goal of enabling collaborative self-realization through participatory democratic politics. It offers an interpretation of the radical tradition as defined by a view of human nature as a cultural artifact, and a conception of liberation as the self-conscious transformation of human nature. It proceeds to critique radical theory’s traditional focus on revolution as the means of radical transformation. Distinguishing instrumental and self-expressive conceptions of transformation it critiques revolutionary processes as tending to reproduce instrumental culture. It offers democratic …
Feminist Jurisprudence: The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda M. Finley, Carin Clauss, Joan Bertin
Feminist Jurisprudence: The 1990 Myra Bradwell Day Panel, Elizabeth M. Schneider, Lucinda M. Finley, Carin Clauss, Joan Bertin
Journal Articles
No abstract provided.
Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E. F. Roberts
Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E. F. Roberts
Cornell Law Faculty Publications
No abstract provided.
Charter Challenges: A Test Case For Theories Of Law, W. J. Waluchow
Charter Challenges: A Test Case For Theories Of Law, W. J. Waluchow
Osgoode Hall Law Journal
The author's primary objective is to show that versions of legal positivism, according to which legal validity sometimes depends on moral validity (Inclusive Legal Positivism), are theoretically preferable to those forms of positivism (Exclusive Legal Positivism) which deny this possibility. The author attempts to substantiate this conclusion by demonstrating that Inclusive Legal Positivism provides a better theoretical account of challenges to legal validity based on a document like the Canadian Charter of Rights and Freedoms. His secondary aim is to show that the choice between Inclusive and Exclusive Legal Positivism can have important consequences for legal practice.
Rehnquist Or Rorty?, Carl W. Tobias
Rehnquist Or Rorty?, Carl W. Tobias
Law Faculty Publications
A postmodern response to Gene Shreve, Eighteen Feet of Clay: Thoughts on Phantom Rule 4(m), 67 Ind. L.J. 85 (1991).
The Problem Of The Subject, Pierre Schlag
Foreword: Postmodernism And Law, Pierre Schlag
Stances, Pierre Schlag
The Great Writ In Action: Empirical Light On The Federal Habeas Corpus Debate, Larry Yackle
The Great Writ In Action: Empirical Light On The Federal Habeas Corpus Debate, Larry Yackle
Faculty Scholarship
The national debate regarding federal habeas corpus for state prisoners is fueled in the main by ideology. To some, the authority of the federal courts to entertain constitutional challenges to state criminal convictions is the embodiment of all that was right about the Warren Court and the vision that Court offered of a meaningful system of American liberty, underwritten by independent federal tribunals willing and able to check the coercive power of government. By this account, the Bill of Rights is the protean source of safeguards for individual freedom - commanding generous, imaginative, and insightful elaboration by federal courts at …
Justice O'Connor's Intellectual Property Opinions: Currents And Crosscurrents, Marci A. Hamilton
Justice O'Connor's Intellectual Property Opinions: Currents And Crosscurrents, Marci A. Hamilton
Articles
No abstract provided.
Collateral Estoppel As A Basis For Attorney Discipline: The Next Step, Lester Brickman, John M. Bibona
Collateral Estoppel As A Basis For Attorney Discipline: The Next Step, Lester Brickman, John M. Bibona
Articles
An attorney convicted of a serious crime involving moral turpitude may be consequently disciplined for violation of DR 1-102(A)(5) of the Model Code of Professional Responsibility or Rule 8.4 of the Model Rules of Professional Conduct without the need for relitigating the issue of the attorney's criminal guilt. Likewise, when an attorney is disbarred in one jurisdiction, he can be disbarred by another jurisdiction without relitigating the underlying facts which were the basis for the initial disbarment. When courts thus discipline lawyers, they are invoking collateral estoppel to prevent the attorney from relitigating an issue raised and resolved against him …