Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism,
2010
Dalhousie University Schulich School of Law
Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism, Diana Ginn
Articles, Book Chapters, & Popular Press
In Power Without Law, author Alex Cameron strongly criticizes "incautious judicial activism" which allows the law to become "too malleable to personal judicial predilection."' Cameron makes his arguments primarily through an analysis of a 1999 decision of the Supreme Court of Canada, R v Marshall (No 1)," in which the majority of the Court held that Aboriginal peoples in the Maritimes have a treaty right to hunt, fish and gather, and to sell the products of these activities in order to provide themselves with a moderate livelihood. Cameron also comments on two subsequent and closely related decisions, R v Marshall …
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties,
2010
Dalhousie University Schulich School of Law
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig
Articles, Book Chapters, & Popular Press
The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties,
2010
Dalhousie University Schulich School of Law
Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig
Articles, Book Chapters, & Popular Press
The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …
The Exclusionary Rule Redux - Again,
2010
Fordham Law School
The Exclusionary Rule Redux - Again, Lloyd L. Weinreb
Fordham Urban Law Journal
The exclusionary rule itself is not very complicated: if the police obtain evidence by means that violate a person’s rights under the Fourth Amendment, the evidence is not admissible against that person in a criminal trial. The basic provision, however, has been freighted with innumerable epicycles, and epicycles on epicycles ever since it was made part of Fourth Amendment jurisprudence. The exclusionary rule survives in a kind of doctrinal purgatory, neither accepted fully into the constitutional canon nor cast into the outer darkness. It survives, but its reach is uncertain, its rational questioned, and its value doubted. Hudson v. Michigan …
Did A Switch In Time Save Nine?,
2010
Stanford Law School
Did A Switch In Time Save Nine?, Daniel E. Ho, Kevin M. Quinn
Faculty Articles
Franklin Delano Roosevelt’s court-packing plan of 1937 and the “switch in time that saved nine” animate central questions of law, politics, and history. Did Supreme Court Justice Roberts abruptly switch votes in 1937 to avert a showdown with Roosevelt? Scholars disagree vigorously about whether Roberts’s transformation was gradual and anticipated or abrupt and unexpected. Using newly collected data of votes from the 1931–1940 terms, we contribute to the historical understanding of this episode by providing the first quantitative evidence of Roberts’s transformation. Applying modern measurement methods, we show that Roberts shifted sharply to the left in the 1936 term. The …
The Potential Of Rulemaking By The Nlrb,
2010
American University Washington College of Law
The Potential Of Rulemaking By The Nlrb, Jeffrey Lubbers
Scholarly Articles in Law Reviews & Journals
No abstract provided.
The Humanity Of Law,
2010
Duke Law School
Conspicuous Logic: Using The Logical Fallacy Of Affirming The Consequent As A Litigation Tool,
2010
Barry University School of Law
Conspicuous Logic: Using The Logical Fallacy Of Affirming The Consequent As A Litigation Tool, Stephen M. Rice
Barry Law Review
This article will address one of the specific logical fallacies known as the Fallacy of Affirming the Consequent, discuss the place of formal logic in legal reasoning, describe the Fallacy of Affirming the Consequent, demonstrate how courts have explicitly used the fallacy in deciding cases, and detail how litigators can use the Fallacy to win cases.
“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice,
2010
Barry University School of Law
“Runaway Train”: Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl
Barry Law Review
This paper will argue that, in the absence of effective alternatives, the new law granting court-martial jurisdiction over civilians is a necessary step in effectively controlling crimes by private contractors and other civilians accompanying U.S. armed forces overseas if other measures are not effectuated. Part II will look at two important Supreme Court decisions that currently restrict the military’s ability to court-martial civilians, and it will also highlight the government’s attempts over the past 50 years to come up with a solution to the problem. Part III will examine three alternatives to the amendment to Article 2(a)(10) that could make …
Triple-A Ratings Stench: May The Credit Rating Agencies Be Held Accountable?,
2010
Barry University School of Law
Triple-A Ratings Stench: May The Credit Rating Agencies Be Held Accountable?, Thomas J. Pate
Barry Law Review
This article analyzes the role the Credit Rating Agencies (CRAs) played in developing markets for certain types of asset-backed securities in order to identify how the CRAs promoted the leverage build up that occurred over the past 15 years. This analysis will highlight the fundamental flaws in the ratings process, with a view toward being able to assign responsibility accordingly. Further, the motivations of banks, financial institutions, and corporate issuers in relying on the CRAs will be critiqued. Additionally, the principal past and current in-court claims against the CRAs will be analyzed and hypotheses will be drawn on the liability …
In The Trenches Of Florida’S War On Gangs: A Framework For Prosecuting Florida’S Anti-Gang Sentence Enhancement Provision,
2010
Barry University School of Law
In The Trenches Of Florida’S War On Gangs: A Framework For Prosecuting Florida’S Anti-Gang Sentence Enhancement Provision, Rodrigo M. Caruço
Barry Law Review
This article discusses how the State of Florida prosecutes under the new sentence enhancement provision of Florida’s anti-gang statute. Part I discusses the general history of the provision. Part II analyzes different state approaches to the enhancement provision. Finally, Part III concludes the article with two recommendations. First, a statutory response that provides all courts in the State with clear direction to implement this provision. Second, a judicial approach for Florida courts to consistently implement a provision that is essential to Florida’s war on criminal gangs.
Addict First, Criminal Second – Addiction Fueled Crimes Should Be Ineligible For The Three-Strikes Penalty,
2010
Barry University School of Law
Addict First, Criminal Second – Addiction Fueled Crimes Should Be Ineligible For The Three-Strikes Penalty, Scott Lindquist
Barry Law Review
The author of this article argues that drug addicts who finance their addiction through crime should be ineligible to receive a prison sentence under a recidivist statute like the three-strikes penalty. Part I introduces the problem, addiction and crime among current prisoners reported by the Department of Justice. Part II discusses Gary Ewing, an addict, a criminal, and a third strike offender. The story of Gary Ewing represents the injustices levied upon an addict/criminal by enhanced sentenced statutes like the three-strikes penalty. Part III is a discussion of the history of repeat offender statutes, primarily focusing on the inception of …
Strange Bedfellows: How The Ncaa And Ea Sports May Have Violated Antitrust And Right Of Publicity Laws To Make A Profit At The Exploitation Of Intercollegiate Amateurism,
2010
Barry University School of Law
Strange Bedfellows: How The Ncaa And Ea Sports May Have Violated Antitrust And Right Of Publicity Laws To Make A Profit At The Exploitation Of Intercollegiate Amateurism, Andrew B. Carrabis
Barry Law Review
No abstract provided.
The 'Show' In The 'Show Trial': Contextualizing The Politicization Of The Courtroom,
2010
Barry University School of Law
The 'Show' In The 'Show Trial': Contextualizing The Politicization Of The Courtroom, Awol K. Allo
Barry Law Review
Questioning the indifference of the law to its own normative correctness and its claim to legitimacy, this article explores the epistemological and ontological foundations upon which the concept and lexicon of show trial is predicated. By invoking the theory of performativity, the article distinguishes between the different models of show trials to allow for a more complex and nuanced reading of the particular nature of the show in judicial practices often called ‘show trials.’ By emphasizing the peculiarity of the ‘show’ in each ‘show trial’, the article seeks to reconceptualize the ambit of the criminal trial. Arguing against the emphasis …
Consent To Settle? A New Twist In The Tri-Partite Relationship,
2010
Barry University School of Law
Consent To Settle? A New Twist In The Tri-Partite Relationship, David F. Tavella
Barry Law Review
This article discusses the tri-partite relationship in litigation between insurers, the insured, and retained counsel. This article further discusses the complications for plaintiffs who wish to settle a case with defense counsel retained by the insurance carrier, and the ethical considerations that may arise under the Model Rules of Professional conduct when settlement is at the direction of the insurance carrier.
Melendez-Diaz V. Massachusetts: The Future Of The Confrontation Clause,
2010
Barry University School of Law
Melendez-Diaz V. Massachusetts: The Future Of The Confrontation Clause, Joseph Henn
Barry Law Review
The purpose of this article is to show the error in the majorities’ decision in Melendez-Diaz by approaching the issue from two perspectives. First, by investigating the cases and legal doctrines created by the Supreme Court in the years preceding Melendez-Diaz, this article will demonstrate why the case was erroneously decided. Second, this article explores the possibility that the majority decision was correct and thus the recently devised standard in Crawford v. Washington is inherently flawed. This article will further discuss the prior application of law before the Melendez-Diaz decision, offer analysis on the string of cases that led …
Deliberately Defrauding Investors: The Scope Of Liability Comment.,
2010
St. Mary's University
Deliberately Defrauding Investors: The Scope Of Liability Comment., Andrew R. Simank
St. Mary's Law Journal
Since the Enron debacle, shareholders have increasingly filed suit in state and federal courts to recoup financial losses resulting from fraudulent representations made by failing corporations. These shareholders have advanced common law misrepresentation claims against publicly traded companies for alleged fraudulent U.S. Securities and Exchange Commission (SEC) filings. Originally, the scope of liability for common law fraud was very narrow. This scope was later broadened in an attempt to provide protection to individuals commonly victimized by fraudulent behavior. Texas courts have gone to great lengths to ensure the “expectation of influencing conduct” requirement for common law fraud requires more than …
On The Legal Validation Of Sexual Relationships,
2010
Valparaiso University
On The Legal Validation Of Sexual Relationships, Richard Stith
Law Faculty Publications
No abstract provided.
The Golden Age That Never Was: Catholic Law Schools From 1930-1960 And The Question Of Identity,
2010
Loyola University Chicago
The Golden Age That Never Was: Catholic Law Schools From 1930-1960 And The Question Of Identity, John M. Breen
Faculty Publications & Other Works
No abstract provided.
"There Must Be A Means" - The Backward Jurisprudence Of Baze V. Rees,
2010
Loyola University Chicago
"There Must Be A Means" - The Backward Jurisprudence Of Baze V. Rees, Nadia N. Sawicki
Faculty Publications & Other Works
No abstract provided.
