The Barry Law Review最新文献

{"title":"A Comprehensive Rethinking of Equal Protection Post-Obergefell: A Plea for Substantivity in Law","authors":"Shannon Gilreath","doi":"10.2139/SSRN.3242183","DOIUrl":"https://doi.org/10.2139/SSRN.3242183","url":null,"abstract":"Obergefell v. Hodges, the case holding that same-sex marriage is a fundamental right that states cannot deny, is widely regarded by progressives as a civil rights milestone. Lochner v. New York, on the other hand, is nearly uniformly considered by constitutional scholars, progressive or not, as a virtual epithet—one of the worst blunders in Supreme Court history. In this Article, drawing together years of my ideas and scholarship written to link substantive equality outcomes with the practice of law, I argue, from a pro-gay rights perspective, that Obergefell and Lochner are actually cut from the same cloth and ultimately that substantive due process, the engine of both decisions, will never successfully vindicate the rights of gay Americans or of other marginalized classes. I contend that, under Justice Kennedy's leadership, the Court's continued subsumption of equal protection into the due process clause actually perpetuates inequality, even when the outcome (like access to marriage) appears to promote equality. The culmination of this analysis is my proffering of a theory of equal protection that is substantive in its own right.","PeriodicalId":312965,"journal":{"name":"The Barry Law Review","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121443390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Against Conduct-Based Immunity for Torture Victim Protection Act Defendants","authors":"Luke Ryan","doi":"10.2139/SSRN.2964317","DOIUrl":"https://doi.org/10.2139/SSRN.2964317","url":null,"abstract":"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 apparent authority, or color of law, of any foreign nation.” Nevertheless, the court determined that the TVPA did not abrogate federal common law immunity “where the sovereign state officially acknowledges and embraces the official’s acts,” allowing the court to also avoid the complicated question of whether the executive branch has the power to order a court to grant immunity. \u0000This article argues that the text and legislative history of the TVPA prohibit federal common law conduct-based immunity. First, the mere assertion that a TVPA defendant acted “in his official capacity” is not sufficient to dismiss allegations of torture or extrajudicial killing because the TVPA requires such capacity as a prerequisite to liability. Second, the Act’s legislative history, which directs federal courts to look to 42 U.S.C. § 1983 actions for guidance regarding the immunities available to TVPA defendants, demonstrates Congress’ intent to allow government officials to be held personally liable for acts undertaken in an official capacity—regardless of a foreign state’s acknowledgment or embracement. Finally, while federal courts have an interest in avoiding conflict with the executive branch in cases involving foreign affairs, the executive branch lacks the power to mandate conduct-based foreign official immunity—especially when, as here, the executive branch asserts an incorrect interpretation of federal law.","PeriodicalId":312965,"journal":{"name":"The Barry Law Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132298009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Find My Criminals: Fourth Amendment Implications of the Universal Cell Phone \"App\" that Every Cell Phone User Has but No Criminal Wants","authors":"Christopher Joseph","doi":"10.2139/SSRN.2768867","DOIUrl":"https://doi.org/10.2139/SSRN.2768867","url":null,"abstract":"The current state of the law with regard to the collection and use of cell site location information (CSLI) varies from state to state, and even between federal and state jurisdictions; not to mention that the rules can change depending on whether the information sought is historical or prospective. In light of Supreme Court precedent related to the topic, a court order should be sufficient to obtain this information, despite the fact that several jurisdictions demand a search warrant in order for members of law enforcement to obtain and use this information. However, even if a search warrant is required, exceptions to the warrant requirement can be applied to allow the police to obtain and use this information without first obtaining a search warrant.","PeriodicalId":312965,"journal":{"name":"The Barry Law Review","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123621157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Standing of the Public Interest","authors":"Amitai Etzioni","doi":"10.17058/rdunisc.v2i49.7896","DOIUrl":"https://doi.org/10.17058/rdunisc.v2i49.7896","url":null,"abstract":"Liberal communitarians hold that a good society achieves a carefully crafted balance between individual rights and the common good. Critics argue that there is no such thing as the common good; only aggregation of personal goods. The article first defends the concept of the common good; and then shows that it is very similar to the concept of the public interest used in the law. The article then examines the ways American courts balance the public interest and the common good in three areas: free speech, public safety, and taking.","PeriodicalId":312965,"journal":{"name":"The Barry Law Review","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133871186","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Children, Armed Conflict, and Genocide: Applying the Law of Genocide to the Recruitment and Use of Children in Armed Conflict","authors":"J. Ray","doi":"10.2139/SSRN.2376036","DOIUrl":"https://doi.org/10.2139/SSRN.2376036","url":null,"abstract":"This paper shows that the use of child soldiers in armed conflict has the potential to be considered as genocide. A brief background of genocide is presented prior to the analysis. Part I, of the analysis, will discuss three issues: First, the modern understanding of genocide and the substantive areas of law that govern it; Second, the definition of ‘child’ within the international arena as it relates to child soldering; Third, a discussion to determine if children can constitute a ‘group’ in the context of the law of genocide. Part II provides a discussion elaborating on Part I then analyzing the five disjunctive elements of genocide. A general rule will be synthesized for each element. General rules are synthesized from judicial decisions interpreting the genocide regime, soft law, and scholarly writings. Each element includes an analysis to determine applicability of the element as it relates to child soldiers.","PeriodicalId":312965,"journal":{"name":"The Barry Law Review","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125177851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Has Society Become Tolerant of Further Infringement on First Amendment Rights","authors":"N. Primrose","doi":"10.2139/SSRN.2192195","DOIUrl":"https://doi.org/10.2139/SSRN.2192195","url":null,"abstract":"The First Amendment was written as a general prohibition on infringement of certain rights. This paper focused mostly on freedom of speech that has religious undertones. Part I of this paper introduces the First Amendment, including some historic interpretation and understanding of why the First Amendment is important to our society. Part II of this paper focuses on what the author deems three important events that are shaping society's current view of the First Amendment. Part II discusses the current events of the Ground Zero Mosque, the Westboro Baptist Church protesting and subsequent actions, and the comments from Chick-fil-A CEO Dan Cathy regarding same-sex marriage. The author analyzes these three events to discuss concerns over society becoming tolerant of infringement on the First Amendment. Part III of this paper discusses some considerations for society. The need to protect the 'marketplace of ideas' because that is what the First Amendent was designed to protect. FInally, the paper touches on how social media and new trends in speech should also protect the idea of open public discourse. Overall, reading this paper will give you an understanding of how even though we may disagree with some speech, protecting the open debate outweighs censoring speech.","PeriodicalId":312965,"journal":{"name":"The Barry Law Review","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130000300","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Lawyers Bring Big Screen Drama to the Courtroom: How Popular Culture’s Influence on the Law has Created the Need for ‘Professional Witnesses’","authors":"Katherine Lee Klapsa","doi":"10.2139/SSRN.2113216","DOIUrl":"https://doi.org/10.2139/SSRN.2113216","url":null,"abstract":"In July 2011, Reuters published a story of an unconventional law firm located in Southern Florida and one of a handful of its kind, specializing in connecting lawyers with actors. The connection between the actors and the attorney is not for agency purposes, as one would expect; rather, the relationship is synergistic. The attorney employs the actor as a stand-in “professional witness.” The need for a professional witness arises when a witness, who has already been deposed by the lawyer, is unavailable to attend the trial. Necessity requires the deposition to be read, so who are you going to call? An actor! At trial, the attorney and actor engage in a typical question and answer session, but the answers are the witness’ answers, not the actor’s. To date, the reported use of actors in Florida is rare, but it is gaining publicity. Law Actors, a Chicago based firm, has provided such services to Florida since the 1990s and, on average, has roughly twenty requests for stand-in deposition readers a year. Furthermore, firms such as Law Actors, offer workshops, taught by actors, which teach trial lawyers how to elicit the most compelling testimony from their witnesses. Additionally, classes are offered in a stage presentation, which is a skill that typically only trained actors possess. Consider this scenario: an attorney asked a paralegal from his office to read the deposition of the unavailable witness. While the paralegal was reading, the attorney noticed the reaction of the audience, i.e. the jury. The paralegal was simply not able to maintain the undivided attention of the jury. In fact, the jury was falling asleep. The jury simply did not listen to the crucial testimony. The reader appeared uncomfortable with public speaking and merely recited words from the sheet before him. The attorney concluded he was going to hire an actor to read the deposition the next time a crucial witness was unable to appear in court, and that is exactly what he did. His decision to hire an actor to read crucial witness testimony ultimately paid off in the form of a favorable verdict. In Florida, if a witness is unavailable for trial and his or her testimony is crucial to their case, attorneys may contact this Miami firm to do a casting call of local or national actors, who meet the desired criteria. Once selected, the actor receives the deposition ahead of time, which allows the actor to arrive in court prepared to give a performance that is sure to grab the audience’s attention. The theory driving this practice is that generally people grasp ideas best when conveyed through words and images. To understand why the adversarial process has grown to need professional witnesses, one must look at the evolution of modern trial advocacy, and consider how popular culture has influenced the public’s attention, perception, and legal expectations resulting in the practice of law under “popular legal culture.” Modern society has become dependent upon the internet and mass-media as ","PeriodicalId":312965,"journal":{"name":"The Barry Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117344122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Rational Choice Reflection on the Balance Among Individual Rights, Collective Security, and Threat Portrayals Between 9/11 and the Invasion of Iraq","authors":"Robert Bejesky","doi":"10.2139/ssrn.2034547","DOIUrl":"https://doi.org/10.2139/ssrn.2034547","url":null,"abstract":"","PeriodicalId":312965,"journal":{"name":"The Barry Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117311804","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}