Catholic University Law Review最新文献

{"title":"Electronic Discovery and Sanctions for Spoliation: Perspectives from the Classroom","authors":"Robert A. Weninger","doi":"10.2139/SSRN.1987057","DOIUrl":"https://doi.org/10.2139/SSRN.1987057","url":null,"abstract":"This article discusses the spoliation of ESI (electronically stored evidence) in a completely non-technical way. It focuses on the law governing sanctions and not on computer technology. Professor Richard L. Marcus, the Special Reporter to the Civil Rules Advisory Committee and a primary drafter of the 2006 amendments addressing the discovery of ESI, kindly reviewed and commented on my article. He said that the piece is particularly timely because the Advisory Committee is presently considering whether to propose further amendments to address problems created by disparate positions taken by federal courts on sanctioning for spoliation. For instance, courts divide over the level of culpability required for the issuance of a serious sanction (such as an adverse inference instruction) and over requirements that the innocent party prove the relevance of the missing evidence. I focus on these differences in my discussion of two landmark 2010 sanctions decisions, Pension Committee and Rimkus, by federal district Judges Shira A. Schiendlin (author of the famous Zubulake opinions) and Lee H. Rosenthal (now Chair of the Standing Committee). Both of these judges served on the Advisory Committee during the amendment process and are widely known to be e-discovery experts. Rimkus and Pension Committee are useful background for my analysis of the teaching effectiveness of Connor v/ Sun Trust, the first spoliation decision in the casebook, Electronic Discovery and Digital Evidence (by Judge Shria A. Scheindlin and Professor Daniel J. Capra), which I used in my course in Complex Litigation. Conner appears in the casebook under the heading, “What Constitutes Spoliation?” I had my students email me each day their comments on how the cases covered in class helped them learn about the spoliation of ESI. Their comments (and mine) on the teaching effectiveness of Connor are an integral part of the article. Also, I briefly refer to some of the Federal Judicial Center’s empirical research on sanctions decisions. Please see my CV for citations to my articles in which I report the results of my own empirical research. The article concludes with a discussion of the current efforts of the Advisory Committee on Civil Rules to whether or not to propose a rule-based approach to preservation and sanctions for spoliation.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"61 1","pages":"775-806"},"PeriodicalIF":0.2,"publicationDate":"2012-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1987057","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67832660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legalizing Jerusalem or, of Law, Fantasy, and Faith","authors":"Nathaniel Berman","doi":"10.1163/9789004210257_010","DOIUrl":"https://doi.org/10.1163/9789004210257_010","url":null,"abstract":"In this study, the author sought to apply his general approach to one aspect of the Israeli-Palestinian conflict, often considered one of the most 'baffling' in the world. His analysis criticizes the idea that internationalism provides a neutral and rational perspective, and that it, in that sense, radically differs from nationalism. Just as there are various forms or conceptions of the universality of international authority, so are there competing conceptions of its rationality. He focuses on three attitudes, three different forms of reason, that characterize international lawyers and policymakers dealing with nationalism. The author prefers to speak of a \"dedoublement passionnel\" of their internationalist and nationalist longings. He says that, the fantasy of such a policy proposer \"dedouble\" is that there is a way we can be both believers in cosmopolitan peace and yet remain who we are: passionate, partisan nationalists. Keywords:dedoublement passionnel; Israeli-Palestinian; partisan nationalists","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"45 1","pages":"823-836"},"PeriodicalIF":0.2,"publicationDate":"2011-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64513023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Standard for Salvation: Evaluating 'Hybrid Rights' Free-Exercise Claims","authors":"W. Haun","doi":"10.2139/SSRN.1952601","DOIUrl":"https://doi.org/10.2139/SSRN.1952601","url":null,"abstract":"In Employment Division v. Smith, the United States Supreme Court articulated the only avenue by which an individual could use the Free Exercise of Religion Clause to obtain a religious-based exemption from a law of general applicability. These \"hybrid claims,\" where the free exercise interest acts in conjunction with another constitutional claim, experienced no subsequent explanation from either the Congress or the Supreme Court, leaving lower courts to question their veracity or dismiss them outright -- circumventing binding Supreme Court precedent, and denying relief to religious discrimination. The recent U.S. Supreme Court case Christian Legal Society v. Martinez is an example of the Court's disinterest in explaining the doctrine, and the consequences of such disinterest. This article argues that the Smith Court created a bona fide hybrid exception to its free-exercise rule, and works with earlier free-exercise cases to establish a standard to evaluate hybrid claims. The article applies that standard to the Martinez case, refutes critics of hybrid rights, and recommends a strategy for religious liberty plaintiffs to employ the standard in order for courts to affirmatively develop it.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"61 1","pages":"265-296"},"PeriodicalIF":0.2,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67810822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Untangling the Web Spun by Title VII's Referral & Deferral Scheme","authors":"L. D. Taylor","doi":"10.2139/SSRN.1243694","DOIUrl":"https://doi.org/10.2139/SSRN.1243694","url":null,"abstract":"Title VII's dual enforcement scheme creates knotty preclusion and subject-matter jurisdiction issues. The statute requires that claims of employment discrimination made in those states or localities with their own administrative enforcement bodies must first be presented locally, and may be pursued in the federal system only after affording the state administrative body time to attempt their resolution. The result of this dual enforcement scheme is that in some cases, a claim comes to federal court after it has already been adjudicated in the state system. Questions then arise as to whether the federal court has jurisdiction to hear the claim and, if so, the extent to which the prior state determination deserves preclusive effect. This Article will attempt to untangle the complicated web of preclusion and jurisdiction issues created by Title VII's dual enforcement scheme, and to define for the benefit of students, practitioners, and judges the approach to resolving such issues that best furthers the implicated legal and policy concerns of workplace equality and federalism.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"59 1","pages":"427-482"},"PeriodicalIF":0.2,"publicationDate":"2009-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68153470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"New Governance and the 'New Paradigm' of Police Accountability: A Democratic Approach to Police Reform","authors":"Kami Chavis","doi":"10.2139/SSRN.1354627","DOIUrl":"https://doi.org/10.2139/SSRN.1354627","url":null,"abstract":"The inherent power of police officers in a democratic society fuels the expectation that those bestowed with such power must be held accountable if they abuse it. Although police departments are most deserving of transparency and public accountability, police culture, often characterized by the \"blue code of silence,\" toleration of aggressive policing techniques, and lax internal oversight, impedes the effective implementation and of meaningful police accountability measures. This Article argues that local police agencies are in fact administrative agencies that regulate not only the conduct of citizens, but also the conduct of police officers operating within the agency. Because some community members are aware of pervasive police misconduct within their communities, they are unlikely to view police reforms as legitimate, especially when they are excluded from the reform process. Thus, the notoriously insular nature of police culture and the resulting community tensions create political legitimacy problems similar to those arising in traditional regulatory contexts. The storied relationship between many communities and police officers amplifies the need for political legitimacy in the police reform context. Therefore, federal intervention efforts addressing the persistence of police misconduct and corruption must be carefully crafted to ameliorate deficiencies in the democratic processes used to develop reforms. This Article contends that efforts to reform police institutions should embrace core principles of the emerging new governance theoretical framework because these principles limit community outrage and enhance the legitimacy of police reforms. Specifically, the paradigm of democratic experimentalism, a subcategory of the broader new governance framework, advocates stakeholder deliberation and local experimentation, features that contribute to overall quality and sustainability of the reforms. This Article argues that the paradigmatic shift in policing from the crime control model to community policing mode, which emphasizes police-community collaboration, is analogous to the shift that must now take place within the context of police reform.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"59 1","pages":"373-426"},"PeriodicalIF":0.2,"publicationDate":"2009-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68168430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Serious Consideration' of Race-Neutral Alternatives in Higher Education","authors":"George R. LaNoue, K. Marcus","doi":"10.13016/M2MNKU-YEPP","DOIUrl":"https://doi.org/10.13016/M2MNKU-YEPP","url":null,"abstract":"What does it mean for a college or university to \"seriously consider\" race-neutral alternatives? Contemporary affirmative action jurisprudence requires post-secondary institutions to address this question, yet does little to answer it. By requiring universities to conduct \"serious, good-faith consideration of workable race-neutral alternatives\" before engaging in non-remedial race-conscious activities-but without specifying the requisite nature and scope of this \"consideration\" - the Court has left many institutions to wonder what is needed to satisfy the Court. Commentators have explored various approaches, including class-rank plans, socioeconomic preferences, and lottery assignment plans. What courts and commentators have largely failed to explore, however, is the basic methodological question: What, specifically, does it mean to give serious consideration to these alternatives? This Article argues that basic principles of program evaluation provide clear standards and criteria for serious program consideration, and that application of these methodologies is mandated by the Court's decisions. As litigation will increasingly focus on narrow tailoring, administrators' failure to apply proper program analysis to race-neutral alternatives could jeopardize many diversity programs. Moreover, the absence of requisite program analysis of race-neutral alternatives will lead to uncertainty, confusion, and disregard for the law. Thus, this Article supplies a framework for identifying meaningful program evaluation standards that can enable universities to comply with the requirements set forth in affirmative action jurisprudence.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"23 1","pages":"991-1044"},"PeriodicalIF":0.2,"publicationDate":"2008-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66548395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"24. Reflections on Responsibilities in the Public Square Through a Perspective of Jewish Tradition: A Brief Biblical Survey","authors":"Samuel J. Levine","doi":"10.1515/9781618116581-009","DOIUrl":"https://doi.org/10.1515/9781618116581-009","url":null,"abstract":"In recent years, there has developed in the United States a substantial and growing interest in the role of religion in the public square. Within religious communities, the conversation has, at times, focused on the approach of specific religious traditions toward their own responsibilities to contribute to and influence the moral, ethical, and legal standards of American society. For Jewish communities living in the United States, these questions comprise yet another application of issues the Jewish people has confronted throughout its history. To the extent that the nature of American political and social structures differ significantly from those experienced by Jewish communities in the past, the questions themselves may need to be particularized and considered in the context of newly developed conceptual frameworks. Levine shows that the broader questions regarding the responsibilities of the Jewish people toward the public square, including obligations to influence law and public policy, represent concerns that date back to the very origins of the Jewish nation, and continues throughout the Bible. Toward that end, he provides a brief survey of several important stages in the biblical history of the Jewish nation. It begins with the figure of Abraham, founder and father of that nation, then turns to the nation's slavery in, and Exodus from, Egypt, continues with the Revelation at Sinai and the resulting establishment of a sovereign and independent government in the Land of Israel, and concludes with a look at the nation in exile in the Book of Esther. Levine suggests that in each of these settings, though in different ways, Jewish leaders and communities acknowledged and successfully confronted the challenges of maintaining their own unique identity while concomitantly engaging and involving themselves in the interests of the societies surrounding them. For Jewish communities in the United States, the biblical teachings continue to offer important lessons. Contemporary American law and society provide a degree of freedom and personal autonomy that is likely unprecedented among the seemingly countless nations and generations in which the Jewish people have lived in exile. On one level, increased freedom brings increased opportunities for engagement in and potential influence on public policy. Nevertheless, increased involvement in the political arena carries the potential for increased challenges to maintaining the Jewish people's distinct spiritual and ethical integrity. Levine concludes that participation in the public square, however necessary and noble, must always be coupled with careful adherence to abiding moral virtues and values.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"66 1","pages":"1203-1220"},"PeriodicalIF":0.2,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/9781618116581-009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66850834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Prohibition Against Torture and Cruel, Inhuman and Degrading Treatment and Punishment: Can the Absolute be Relativized under Existing International Law?","authors":"Y. Shany","doi":"10.2139/SSRN.856905","DOIUrl":"https://doi.org/10.2139/SSRN.856905","url":null,"abstract":"The present article reviews the theoretical underpinnings of the absolute international law prohibition against torture in the light of the general rationales that explain resorting to absolute prescriptions in IHL and IHR instruments. It also examines the scope of the prohibition against torture under international law, as it presently stands, and the degree of absoluteness it actually entails. Significantly, the article does not challenge, nor seeks to revisit the internationally accepted definitions of torture and other forms of cruel, inhuman and degrading treatment or punishment. Instead, it asks whether a distinction between the different degrees of prohibited ill-treatment - i.e., between torture, as defined by article 1 of the Convention against Torture (CAT) and cruel, inhuman and degrading treatment prohibited by article 7 of the International Covenant on Civil and Political Rights (ICCPR) and article 16 of CAT - might have legal significance for the possibility of invoking ex post criminal law defenses against the attribution of legal responsibility.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"56 1","pages":"837-870"},"PeriodicalIF":0.2,"publicationDate":"2005-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67844239","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Big abortion: what the antiabortion movement can learn from big tobacco.","authors":"Justin D Heminger","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"54 4","pages":"1273-311"},"PeriodicalIF":0.2,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26431632","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Nietzsche in Law's Cathedral: Beyond Reason and Postmodernism","authors":"J. Linarelli","doi":"10.2139/SSRN.421040","DOIUrl":"https://doi.org/10.2139/SSRN.421040","url":null,"abstract":"Nietzsche had very little to say about law and what he did say is fragmentary and sporadic. Nietzsche's philosophy, however, offers a basis for theorizing about law. I use Nietzsche's important works to interpret two major movements in legal thought. The first part of the paper examines how Nietzsche's philosophy augments our understanding of deontological theories about the law. Nietzsche produced a substantial ethical theory. The second part of the paper examines how Nietzsche's philosophy helps us to understand law and economics. Nietzsche had a great deal to say about the intellectual predecessor to law and economics, utilitarianism, and his critique of utilitarianism offers insights into law and economics and its intellectual history. Further, Nietzsche elaborated a philosophy of science that extends to and offers insights about \"analytical\" social sciences such as economics.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":"53 1","pages":"413-448"},"PeriodicalIF":0.2,"publicationDate":"2003-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68731257","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}