Jurisprudence Commons^™

Honorable John D. Clifford, Jr. A Memoir By His Three Law Clerks, Frank M. Coffin, L. Damon Scales Jr., Richard E. Poulos

Maine Law Review

The domain over which United States District Judge John D. Clifford, Jr. presided from 1947 until his death in 1956 was very different from what it is today. Anyone could walk into the federal courthouse in Portland. Security guards were unknown, and lawyers, litigants, and passers-by were free to come and go. A leisurely air pervaded all the court offices. There was no hurry. This was an era when there were only two lawyers in the United States Attorney's office: the United States Attorney and his one assistant.

Justice Edward Godfrey And The Role Of The Trial Judge In The Criminal Process, Melvyn H. Zarr University Of Maine School Of Law

Maine Law Review

At the end of 1994 Dean Edward S. Godfrey III stepped down from his teaching position as Professor Emeritus of the University of Maine School of Law. In honor of his service to Maine’s only law school, to the Maine Supreme Judicial Court, to the Maine Bar, and to the people of the State of Maine, the Board and Staff dedicate Volume 47 of the Maine Law Review to Dean Edward Godfrey. Reviews by Maine Law School faculty members of Dean Godfrey’s Law Court decisions in several areas of the law follow.

Of Judicial Review, High Standards And Edward S. Godfrey, David P. Cluchey

Maine Law Review

At the end of 1994 Dean Edward S. Godfrey III stepped down from his teaching position as Professor Emeritus of the University of Maine School of Law. In honor of his service to Maine’s only law school, to the Maine Supreme Judicial Court, to the Maine Bar, and to the people of the State of Maine, the Board and Staff dedicate Volume 47 of the Maine Law Review to Dean Edward Godfrey. Reviews by Maine Law School faculty members of Dean Godfrey’s Law Court decisions in several areas of the law follow.

Basic Trial Advocacy, Michael W. Mullane

Maine Law Review

Mary Crates taught me to “begin as you mean to go on.” Peter Murray's book is a good place to begin for those embarking on a life of trial advocacy. For those of us whose beginnings are distant and often painful memories, it is an excellent reminder of where we meant to go. Trial advocacy is an infinitely complex task. This simple fact is both its joy and curse. Teaching trial advocacy is equally difficult. There is no “never” and no “always.” There is a host of commonly accepted maxims, many of which are contradictory on their face and all …

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

The Just Response To Crime: To Harm Or To Heal?, Matthew M. Silberstein

Philosophy Department Student Scholarship

In the realm of criminal justice, Western society has primarily relied on retributive justice system. A retributive system uses punishment as the standard response to crime. In recent years, some have formulated a different criminal justice system, that of restorative justice. Rather than punishment, restorative justice proponents argue that justice is achieved in the aftermath of crime by healing the trauma incurred by crime. The aim of this project is to articulate the value of restorative justice and evaluate its prospects.

It’S Not The Thought That Counts: Pennsylvania Quietly Made Rape And Idsi Strict Liability Crimes, Jordan E. Yatsko

Dickinson Law Review (2017-Present)

In 1982, the Pennsylvania Superior Court decided Commonwealth v. Williams, wherein the court held that a defendant charged with rape or involuntary deviate sexual intercourse (IDSI) cannot use a mistake of fact defense as to the victim’s consent. The court relied on the reasoning that a defendant’s mens rea is not an element of either rape or IDSI. Section 302 of the Pennsylvania Crimes Code, however, requires that where the legislature has failed to expressly require a finding of mens rea in the text of the statute, at least recklessness must be imputed to each material element.

This Comment …

The Limits Of Pro Se Assistance In Immigration Proceedings: Discussion Of Nwirp V. Sessions, Ryan D. Brunsink, Christina L. Powers

Dickinson Law Review (2017-Present)

This Article discusses issues regarding assistance of pro se litigants in the context of immigration law. In particular, Part II of this Article highlights programs such as the Legal Orientation Program (LOP) and Immigration Court Helpdesk (ICH) that attempt to alleviate some of the inherent difficulties non-citizen detainees face in immigration proceedings. Part III of this Article focuses on a 2008 Regulation by the Executive Office of Immigration Review (EOIR), which calls for discipline against attorneys that engage in a pattern or practice of failing to enter a Notice of Appearance when engaged in practice or preparation. Lastly, Part IV …

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.

Afterword: What's Next? Into A Third Decade Of Latcrit Theory, Community, And Praxis, Steven W. Bender, Francisco Valdes, Shelley Cavalieri, Jasmine Gonzales Rose, Saru Matambanadzo, Roberto Corrada, Jorge Roig, Tayyab Mahmud, Zsea Bowmani, Anthony E. Varona

Faculty Scholarship

In this multi-vocal Afterword, we reflect-personally and collectively to help chart renewed agendas toward and through a third decade of LatCrit theory, community, and praxis. This personal collective exercise illustrates and reconsiders the functions, guideposts, values, and postulates for our shared programmatic work a framework for our daily work as individuals and teams through our portfolio of projects, which in turn emerged as a "reflection and projection of LatCrit theory, community and praxis." These early anchors expressly encompassed (1) a call to recognize and accept the inevitable political nature of U.S. legal scholarship; (2) a concomitant call toward anti-subordination praxis …

Fiction In The Code: Reading Legislation As Literature, Thomas J. Mcsweeney

Faculty Publications

One of the major branches of the field of law and literature is often described as "law as literature." Scholars of law as literature examine the law using the tools of literary analysis. The scholarship in this subfield is dominated by the discussion of narrative texts: confessions, victim-impact statements, and, above all, the judicial opinion. This article will argue that we can use some of the same tools to help us understand non-narrative texts, such as law codes and statutes. Genres create expectations. We do not expect a law code to be literary. Indeed, we tend to dissociate the law …

How Subterranean Regulation Hinders Innovation In Assisted Reproductive Technology, Myrisha S. Lewis

Cardozo Law Review

Most scholars believe assisted reproductive technology is subject only to minimal regulation, especially by the federal government. This belief I contend, is wrong. In this Article, I examine agency documents, statements by officials, and letters that the U.S. Food and Drug Administration (FDA) has sent to physicians and researchers over the past fifteen years to reveal an overlooked regulatory program. The FDA has been targeting new forms of assisted reproductive technology that involve small genetic modifications (advanced assisted reproductive technologies or AARTs) through regulatory actions that receive little public, media, or scholarly attention. I term this method of regulation "subterranean …

Planning For Excellence: Insights From An International Review Of Regulators’ Strategic Plans, Adam M. Finkel, Daniel E. Walters, Angus Corbett

Faculty Scholarship

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …

Pepperdine University School Of Law Legal Summaries, Armando Lopez

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Nuccio V. Nuccio: The Doctrine Of Equitable Estoppel Will Not Bar The Statute Of Limitations Defense In A Child Sexual Abuse Case Involving Repressed Memory, Christina J. D'Appolonia

Maine Law Review

Kathleen Nuccio alleged that she was sexually abused by her father when she was three years old. He continued to sexually abuse her for ten long years. He threatened her life when he held a chisel to her throat and vowed to kill her if she ever told anyone of the abuse. Luke Nuccio not only sexually defiled his daughter but also verbally abused her and physically beat her until she was seventeen years old. One such beating caused damage so severe to Kathleen's ear that she was forced to have surgery. Kathleen never spoke of the abuse during the …

Report Of The Maine Commission On Gender, Justice, And The Courts, Maine Commission On Gender, Justice, And The Courts

Maine Law Review

The Commission on Gender, Justice, and the Courts was established by the Maine Supreme Judicial Court in January 1993, pursuant to a resolution adopted by the Conference of Chief Justices in 1988 urging the creation of task forces to study gender bias and minority concerns within court systems. In recent years, forty-one states, the District of Columbia, and two federal circuits have established task forces on gender bias in the courts as part of a continuing effort to achieve equality for women and men in American society. These jurisdictions recognized that access to a neutral and unbiased court is essential …

A Matter Of Interpretation: Federal Courts And The Law, Charles R. Priest

Maine Law Review

Justice Scalia's engaging essay, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” and the four comments it provokes, should provide lawyers, judges, and other lawmakers with an interesting evening. Instead of presenting a theoretical view of the role of the federal courts in interpretation, Justice Scalia sketches out a case for “textualism.” “Textualism” is one of several currently contending methods of interpreting statutes and the United States Constitution, and is currently popular among federal judges who see their role as restricting government's powers to those expressly stated in the …

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

Notre Dame Law Review

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this …

Originalism, Cass R. Sunstein

Notre Dame Law Review

Originalism might be defended on two very different grounds. The first is that it is in some sense mandatory—for example, that it follows from the very idea of interpretation, from having a written Constitution, or from the only legitimate justifications for judicial review. The second is that originalism is best on broadly consequentialist grounds. While the first kind of defense is not convincing, the second cannot be ruled off limits. In an imaginable world, it is right; in our world, it is usually not. But in the context of impeachment, originalism is indeed best, because there are no sufficiently helpful …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Notre Dame Law Review

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” …

The Canon Of Rational Basis Review, Katie R. Eyer

Notre Dame Law Review

The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review.

This Article suggests that far from the weak and ineffectual mechanism that most contemporary accounts suggest, rational basis review has, in the modern era, served as one of the primary equal protection entry …

Use Your Words: On The "Speech" In "Freedom Of Speech", Leslie Kendrick

Michigan Law Review

Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech from easily regulated economic activity. Skeptics view this struggle as evidence that speech is, in fact, not distinguishable from other forms of activity.

This Article refutes that view. It argues that speech is indeed distinct from other forms of activity, and that even accounts that deny this distinction actually admit it. It then argues that the features that make speech distinctive as a phenomenon also make it distinctive as a normative …

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that …

Nonmajority Opinions And Biconditional Rules, Adam N. Steinman

Faculty Scholarship

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court's holding is "the position taken by those Members who concurred in the judgments on the narrowest grounds." The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an …

Individual Accountability For Corporate Crime, Gregory Gilchrist

Georgia State University Law Review

Corporate crime is too often addressed by fining the corporation, leaving the real people who committed the crime facing no consequence at all. This failure to hold individuals accountable in cases of corporate malfeasance generates an accountability gap that undermines deterrence and introduces expressive costs. Facing heightened criticism of this trend, then-Deputy Attorney General Sally Yates issued a policy designed to generate prosecutions of real people in cases of corporate wrongdoing. The policy reflects a strong and continuing demand for more prosecutions of individuals in the corporate context.

This Article contends that the effort to introduce accountability by increasing prosecutions …

Against Conduct-Based Immunity For Torture Victim Protection Act Defendants, Luke Ryan

Barry Law Review

On October 13, 2016, former Israeli Minister of Defense, Ehud Barak, was granted immunity and dismissed from a civil action alleging he violated the Torture Victim Protection Act of 1991 (TVPA) by authorizing the torture and extrajudicial killing of an American citizen. Both the government of Israel and the United States Department of State called on the court to grant federal common law foreign official immunity by arguing that Barak was protected from suit because he acted “in his official capacity.” The TVPA, however, permits legal action against foreign defendants who have acted in such a capacity—namely, “under actual or …

Maine's Overburdened Law Court: Has The Time Come For A Maine Appeals Court?, Peter L. Murray

Maine Law Review

For the entire 178 years of Maine's statehood, its Supreme Judicial Court, “sitting as the Law Court,” has served as Maine's appellate court of first and last resort for all appeals from its trial courts of general jurisdiction. Over this time span, and particularly over the last three decades, the growth in number and complexity of civil and criminal appeals has placed the Law Court under an extremely heavy burden of cases. The sheer number of the appeals which the Law Court is expected to consider and decide risks exceeding the capacity of the institution for careful, thorough, and deliberate …

Access To Adjudication Materials On Federal Agency Websites, Daniel J. Sheffner

Akron Law Review

This Article offers recommendations and best practices for federal administrative agencies interested in improving the accessibility of orders, opinions, briefs, and other materials filed or issued in administrative adjudication proceedings on their websites and in maintaining more comprehensive online collections of such adjudication materials. Part I provides an overview of federal administrative adjudication and the laws and policies relevant to the online disclosure of adjudication materials. Part II summarizes a survey the author conducted of 24 federal agency websites and presents its results. Part III analyzes the survey’s findings, dividing the analysis into two sections. The first section discusses the …

The Tradition Of Sustantive Judicial Review: A Case Study Of Continuity In Constitutional Jurisprudence, David M. Gold

Maine Law Review

Until the 1970s, scholars routinely asserted that courts in the late nineteenth century initiated a radical reinterpretation of due process of law in their attempt to stem an onrushing tide of legislation designed to regulate business activity. This protection-of-business theory of due process development originated with the efforts of socialist and progressive commentators of the early twentieth century to discredit what they saw as a “revolutionary” transformation of due process from a term of “nominal significance in American constitutional law” into a bulwark of property. Progressive intellectuals assailed the judiciary in similar terms. Yale University president Arthur T. Hadley, an …