Volume 42 Issue 1
Sticks and Stones May Break My Bones, But Names Could Get Me a Mistrial: An Examination of Name-Calling in Closing Argument in Civil Cases
Janelle Dine
This article examines the law surrounding what is and what is not acceptable argument during summation. Specifically, the article focuses on inappropriate name-calling of the opposing party, counsel, or witnesses, that is, name-calling that is not supported by specific evidence introduced during trial. As scorched earth tactics become ever popular in the courtroom this article argues that attorneys have an ethical obligation to argue within the the law and follow the rules of professional conduct. The article also opines that attorneys and judges have an ethical duty to prevent and/or report inappropriate name-calling.
This article begins by detailing the current law of closing argument with specific emphasis on the prohibition on appealing to the passion and prejudice of the jury. The article then discusses various applicable provisions in the Model Rules of Professional Conduct that deal with courtroom conduct. Third, the article provides a thorough analysis of various case law involving the issue of inappropriate name-calling. This section recognizes that appellate courts have not dealt consistently with the issue, leaving attorneys with little guidance as to the appropriate conduct during summation. Finally, the article offers a 4 part solution to the problem of inappropriate name-calling. This practical solution begins with each individual trial lawyer finding the balance between zealous advocacy and the law.
I E-vote, U I-vote, Why Can't We All Just Vote?!: A Survey of the Changing Face of the American Election
Joshua Clowers
Since its inception, electronic voting (“e-voting”) has presented unique and complex questions for our legal system and our democracy in general. These questions have grown more important as the technology has proliferated state electoral systems, yet e-voting’s technological shortcomings go uncorrected and the legal issues it presents remain largely unresolved. Despite the problems that e-voting has encountered, recent years have seen growing support for the concept of taking the next step in e-voting: voting over the Internet (“I-voting”).
This article is timed in anticipation of the 2006 election season, but also in the wake of the 2004 presidential election. Despite the fact that none of the controversies from the 2000 election seemed to permeate into the 2004 election, an appalling one out of every one hundred votes cast using e-voting technology were simply never counted. This proved not to be a surprising figure, however, given that over 2.2 million votes had gone uncounted in each of the four prior presidential elections. Critics of the technology have gone so far as to say that we are undermining our democracy in favor of convenience at the polls.
The purpose of this article is to show that, though e-voting may be an appealing solution to many of the problems with conventional voting, in its current state and without more checks and balances, security, and means of accountability, the American electoral system is undertaking an impermissibly dangerous approach to altering one of the most hallowed and essential components of its sovereignty. This article critically examines e-voting as it currently exists, what the future holds for e-voting and the potential implementation of I-voting. It closes with a proposed system for the implementation of a hybridized e-voting/I-voting system which attempts to remedy the problems posed by e-voting in its current form and I-voting as it has been proposed.
Restoration and Relief: Procedural Justice and the September 11th Victim Compensation Fund
Tracy Hresko
The development and implementation of the September 11th Victim Compensation Fund were unprecedented events in American legal history. Never before had Congress issued a veritable “blank check” for governmental compensation of those injured by non-governmental acts. Indeed, though the United States government had provided assistance and even financial compensation to disaster victims in the past, such financial assistance was rare and had always been subject to strictly enforced caps. Congress, however, gave control of the September 11th Victim Compensation Fund to a Special Master who was given almost complete authority and discretion to award the victims of September 11th with whatever monetary amount he deemed fit. No caps were placed on these awards and very few directions were given to the Special Master. As such, there was a great deal of speculation and concern about the administration of the Fund. Many worried that it was unfair and insufficient. Others complained that awards were arbitrary, based more on the whims of the Special Master than on the extensive calculations supposedly conducted by his staff. Still others argued that the September 11th Victim Compensation Fund was the best possible response to a difficult set of circumstances, inherently flawed, but important and admirable nonetheless.
The article, therefore, seeks to address these arguments by examining the September 11th Victim Compensation Fund from a procedural perspective. It strives to identify the procedural values considered most important in American society and then to assess the Victim Compensation Fund based on its embodiment of these values. Notably, fairness and efficiency are identified as the two most important overarching procedural values in the United States, with several other principles embodied by each. The paper concludes by making several recommendations for the administration of future victim compensation funds. Because such funds are likely to be proposed, developed and administered in the future, particularly in response to acts of terror on U.S. soil, I think that this is a vitally important topic.
Pandora’s Box: Can HIPAA Still Protect Patient Privacy Under A National Health Care Information Network?
Sean T. McLaughlin
You Drink, You Drive, You Lose: Or Do You?
Tina Wescott Cafaro
This article explores different ways to effectively discourage the crime of alcohol impaired driving. Part I analyzes the trend of utilizing preventative measures such as education to counteract societal acceptance of this crime and discusses the shortcomings of relying exclusively on this measure. Part II discusses OUI prevention based on deterrence and the current use of stricter penalties such as mandatory jail sentences to stop alcohol impaired drivers. In this section, I question whether increasing the severity of the punishment for OUI offenses is effective in stopping the crime. This section also discusses the shortcomings of OUI legislation that make deterring OUI difficult. Part III explores ways to combat the problem of OUI, including de-criminalizing first offense OUI, implementing uniform Dram Shop Laws and combining preventative societal measures with legal means aimed at increasing the likelihood of arrest and certainty of conviction. Ultimately, I conclude that the target of awareness campaigns must shift away from the general public and to alcohol serving institutions. I advocate the adoption in each state of a uniform Dram Shop Act. I also conclude that law enforcement must be provided with adequate funding to facilitate the apprehension of OUI violators and, that once violators are apprehended and convicted, the penalties imposed must be creative in order to deter repeat conduct. These penalties must include enhancing the punishment for driving while one's license is suspended for OUI and for refusing to take a breath test or field sobriety tests.
Volume 42 Issue 2
Seizures Without Searches: Defining Property Seizures and Developing a Property Seizure Model
Major Eric R. Carpenter
The bodies of law surrounding searches and arrests are well developed, and both terms have settled definitions. However, because a seizure is usually the natural byproduct of a search, or is otherwise justified under the plain view doctrine, “pure” property seizure law is not well developed. Consequently, “pure” property seizures have not received much attention, and the term “seizure” has escaped definition: most law school graduates can recite the definition of “search” – how many can recite the definition of “seizure”?
But consider the following hypothetical: imagine federal agents suspect that an American of Saudi Arabia descent has ties to a terrorist organization. He takes a package to a shipping store, with an outbound address to Yemen. He leaves the store, and a federal agent, with the consent of the shipping store, takes the package to her office to investigate the shipping address – all without having a reasonable suspicion that the man was engaged in criminal activity. The agent returns the package before the truck that the package would have shipped out on departs. Did the officer’s actions amount to a “seizure” within the meaning of the Fourth Amendment? If the officer had eventually found some evidence in this package, would that evidence be admissible in court? In this paper, I explore two competing definitions for seizure: each provides a different outcome to this hypothetical. I argue for the adoption of a model that would label this government action a seizure, and require the government to have a reasonable suspicion before seizing the property.
Competing Goals Amidst the “Opt-Out” Revolution: An Examination of Gender Based Tax Reform in Light of New Data on Female Labor Supply
Lora Cicconi
Preserving Due Process: Staying Voluntary Departure Periods in Immigration Proceedings with the Constitutional Avoidance Canon
Erika Lucas
Amid this constant media frenzy there is a quieter, but just as problematic issue of due process rights for illegal aliens in deportation proceedings. In Benslimane v. Gonzales, a recent Seventh Circuit decision, Judge Posner's harsh criticism of the Board of Immigration appeals culminated in the statement that "the adjudication of these [immigration] cases at the administrative level has fallen below the minimum standards of legal justice." Judge Posner is not the only critic of the lack of due process afforded to immigrants in deportation proceedings. The Second, Third, and Ninth Circuits have issued decisions with similar comments. Due to the unyielding criticism from courts, human rights groups, and the media, Attorney General Alberto Gonzales has ordered a comprehensive review of the immigration court system, thereby acknowledging the insufficient procedures currently offered.
This comment approaches this due due process problem by addressing some of the legislation behind the current immigration court system, specifically deportation hearings. It discusses the various circuit court interpretations of this legislation, and proposes a construction of this legislation that maintains the constitutional due process rights of immigrants within the United States, while remaining within the bounds of the statutory language.
Reevaluating Capital Punishment: The Fallacy of a Foolproof System, the Focus on Reform, and the International Factor
Greta Proctor
This article attempts to dispel the misplaced focus on reform within death penalty discourse by demonstrating that reform is ultimately unworkable. Specifically, I focus on the recently proposed "absolute proof" standard, which would raise the standard of proof in capital trials from "beyond reasonable doubt" to beyond all doubt" in an attempt to avoid execution of innocents. I expose the inherent, often overlooked flaws in the very scientific evidence that a "beyond all doubt" standard would rely on, including DNA and other forensics.
More importantly, I argue that the continued, misguided focus on reform has obstructed the true dilemma that American policymakers face with regard to capital punishment. This article asserts that because of the impossibility of reform, America must either abolish capital punishment entirely, or must alternatively acknowledge its failings head-on and attempt to reconcile the inevitable sacrifice of some innocent persons with our Constitution. The imminence of such decision is made more pronounced and urgent by the current state of affairs internationally with regard to capital punishment. The global community continues to align against the death penalty, while at the same time terrorism increasingly requires international cooperation in the punishment of worldwide criminals. This international pressure, combined with ongoing domestic controversy, makes the American policy on the death penalty a potentially explosive issue.
Georgia v. Randolph: A Murky Refinement of the Fourth Amendment Third-Party Consent Doctrine
C. Dan Black
Volume 42 Issue 3
What’s Good for the Goose is Good for the Gander, Lessons from Abu Ghraib: Time for the United States to Adopt a Standard of Command Responsibility Towards its Own
Victor Hansen
This article addresses the need to establish a standard of criminal accountability under U.S. domestic law for commanders whose soldiers violate the law of war. In the wake of the detainee abuse scandals, the military responded by subjecting only lower ranking service members to military courts-martial. Mid-level and senior military commanders did not face criminal sanctions in spite of the fact that under international law there is a well recognized criminal law doctrine of command responsibility. The article explores the theoretical basis of the command responsibility doctrine, its origins, and its development in the 20th Century as part of the customary international law. The article examines the United States’ failure to incorporate a similar doctrine under U.S. domestic law as reflected in the Uniform Code of Military Justice. The article illustrates the serious adverse consequences stemming from the United States’ failure to have a legal mechanism to affix criminal responsibility on commanders. The article proposes a comprehensive amendment to the Uniform Code of Military Justice in order to fully incorporate the doctrine of command responsibility into U.S. domestic law. The proposal also offers ways to remedy specific aspects of the doctrine that have remained a source of confusion under international law.
Subsidiarity and Protest: The Law School’s Mission in Grutter and Fair
Peter Widulski
The adoption of the principle of subsidiarity as a constitutional principle of the European Community has stimulated scholarly interest in this principle and investigation into the extent to which subsidiarity is reflected in the United States Constitution, in acts of Congress, and in U.S. Supreme Court decisions. The principle counsels, among other things, that in enforcing its legitimate mandates the highest political authority in a national state or community of states should avoid to the extent possible frustrating the initiatives of intermediary associations and institutions undertaken pursuant to their function or mission and in service to their members and to society at large. At the same time, however, the principle acknowledges the ultimate authority of the political order to co-ordinate the activities of intermediary bodies with the rest of society and with the law, with a view to the common or public good. In Regent of the University of California v. Bakke (through Justice Powell’s Opinion) and in Grutter v. Bollinger, the Supreme Court’s judgments implicitly reflected subsidiarity concerns by acknowledging the importance of the academic admissions policies at issue in these cases to the mission of professional schools, by taking account of the contributions of these policies to the public good, and in holding that such policies can be co-ordinated with the law to be applied and with national policy. In its decision this past term in Rumsfeld v. FAIR, however, the Court rejected the challenge of an association of law schools to enforcement of a Congressional statute requiring them to provide campus access to the military for recruitment purposes – a challenge grounded in the law schools’ protest against the military’s policy on recruitment of homosexuals. Despite the fact that the law schools argued that their stance was based on mission-related goals, the Court gave no deference to the law school mission and unanimously rejected this challenge. It is the thesis of this article that it is unwarranted to read the Court’s decision in FAIR as repudiating the Court’s implicit acknowledgment of subsidiarity concerns in Bakke and Grutter. The legal contours of FAIR gave significantly less scope than was available in the other two cases for acknowledgment of the academic mission and for arguing that the law schools’ policy in question served the public good. And the fact that this policy was opposed to a statute supporting military recruitment made the co-ordination problem much more difficult than in the other two cases.
From CD to MP3: Compression in the New Age of Technology Overlooked Infringement or Fair Use?
Sydney Aaron Beckman
This article examines the legal aspect of a common practice: transferring music from Compact Disc to portable media players such as an iPod. In accomplishing the transfer, the original songs are necessarily compressed into a different format such as AAC or MP3. Although the United States Copyright Act clearly governs this practice, application of the Act to these transfers has been ignored by the literature which has focused primarily on file-sharing. However, this practice is much more prolific than file-sharing. This article analyzes this practice in light of the Copyright Act and reaches the conclusion that such conversion into a compressed format violates the exclusive rights held by copyright owners.
Eliding in Washington and California
Monte Neil Stewart
For a number of years now, the “marriage issue” has been hotly contested in the courts of the United States, Canada, and South Africa. The issue is this: Do constitutional norms, particularly of equality and liberty, require the redefinition of marriage from the union of a man and a woman to the union of any two persons?
Despite the intensity of the contest, all informed participants acknowledge that marriage is a vital social institution. That understanding has brought attention to social institutional studies, which in turn has led to a number of uncontroversial understandings of social institutions in general and the marriage institution in particular, which in turn has led to the social institutional argument for man/woman marriage. This argument is a sufficient response to all constitutional attacks leveled at the laws defining and sustaining man/woman marriage.
The judges who would mandate the redefinition of marriage, however, have elided the social institutional argument for man/woman marriage; that is, they have ignored or evaded it. Their models of elision are now well documented in scholarly literature and are repeating themselves case by case, but with each new case also managing to provide at least one original evasion of social institutional realities. This pattern is seen in the dissenting opinions in two recent appellate court cases addressing the marriage issue: The Washington Supreme Court’s Anderson v. King County and the California Court of Appeal’s In re Marriage Cases. Because those dissenting opinions are interesting, and engagement with them intellectually productive, this article critically examines both.
The Family Medical Leave Act of 1993—Why Does Parental Leave in the United States Fall so far Behind Europe?
Annie Pelletier
Abstracts Coming Issues