North Carolina law review最新文献_第3页

Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed 治安法官?为什么联邦证据规则404(A)(2)(C)应该被废除

North Carolina law review Pub Date : 2012-08-13 DOI: 10.2139/SSRN.2128873

Colin Miller

{"title":"Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed","authors":"Colin Miller","doi":"10.2139/SSRN.2128873","DOIUrl":"https://doi.org/10.2139/SSRN.2128873","url":null,"abstract":"In two 2012 opinions, Commonwealth v. Bedford and State v. Williams, courts rejected appeals by convicted homicide defendants sentenced to life imprisonment. Each defendant claimed that his victim was the first aggressor, prompting the prosecution to present character evidence concerning the victim’s character for peacefulness even though neither defendant claimed that his victim was generally a violent person. The prosecution in both cases presented this character evidence under a state counterpart to Federal Rule of Evidence 404(a)(2)(C), a frequently applied exception to the general rule that propensity character evidence is inadmissible. Rule 404(a)(2)(C) and its state counterparts are thus the one exception to the general “Pandora’s box” theory which deems propensity character evidence inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character and/or evidence of the victim’s bad character. The Rule is also the rare exception to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Worst of all, this anomalous Rule treats criminal defendants worse than civil defendants in the very type of case in which the accused has the most at stake and faces the largest deployment of investigatory and prosecutorial resources. Accordingly, this article argues for the repeal of Federal Rule of Evidence 404(a)(2)(C) and state counterparts.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"91 1","pages":"1161"},"PeriodicalIF":0.0,"publicationDate":"2012-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67930141","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}

引用次数: 0

Execution in Virginia, 1859: The Trials of Green and Copeland 1859年弗吉尼亚州的死刑:格林和科普兰的审判

North Carolina law review Pub Date : 2012-05-22 DOI: 10.2139/SSRN.2065470

Steven Lubet

{"title":"Execution in Virginia, 1859: The Trials of Green and Copeland","authors":"Steven Lubet","doi":"10.2139/SSRN.2065470","DOIUrl":"https://doi.org/10.2139/SSRN.2065470","url":null,"abstract":"This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown’s raid on Harper’s Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a remarkable attorney – George Sennott of Boston. Unlike virtually all of the other lawyers at the Harper’s Ferry trials, Sennott boldly condemned slavery and announced that he was honored to defend the black insurrectionists. Sennott also employed a creative legal strategy in which he raised the Dred Scott decision as a defense to the treason charge. If black men could not be citizens, he argued, they likewise could not be guilty of treason. The tactic was only partially successful. Green and Copeland were acquitted of treason but convicted nonetheless of murder. Even after pronouncing the death penalty, the Virginia authorities continued their racist treatment of the prisoners. Green and Copeland were executed separately from their white comrades – segregation on the gallows – and their corpses were turned over to medical students for dissection, despite the frantic efforts of Copeland’s family to retrieve his body for decent burial. Throughout his ordeal, and right up until the time he faced the noose, John Copeland held to his ideals. On the morning of his execution he wrote a moving letter to his parents in which he expressed devotion to the “holy cause” for which he would die, while condemning “the demands of the cruel and unjust monster Slavery.”","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"43 1","pages":"1785"},"PeriodicalIF":0.0,"publicationDate":"2012-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67896767","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}

引用次数: 1

Beyond Budget-Cut Criminal Justice: The Future of Penal Law 超越预算削减的刑事司法:刑法的未来

North Carolina law review Pub Date : 2011-04-06 DOI: 10.2139/SSRN.1804539

M. Fan

{"title":"Beyond Budget-Cut Criminal Justice: The Future of Penal Law","authors":"M. Fan","doi":"10.2139/SSRN.1804539","DOIUrl":"https://doi.org/10.2139/SSRN.1804539","url":null,"abstract":"American criminal justice is experiencing a perfect storm of budget-cut criminal justice reform and the awakening of courts to the role of checking penal severity. A wave of reforms is sweeping the states as budgetary shortfalls are leading to measures once virtually impossible or very difficult to enact such as expanded early release, conversion of felonies to misdemeanors and scaling down sentences. On the judicial front, the Supreme Court has resuscitated Eighth Amendment proportionality review and reinvigorated judicial intervention in penal management. The Article argues that these shifts in the social meaning of criminal justice reform from being soft on crime to being fiscally responsible in curbing destructive spending provide political cover for reform and potential for garnering bipartisan support. At this important historical juncture, the Article explores how to transition from emergency-response to sustainable penal law and policy reform. Recent cases such as Brown v. Pena and Graham v. Florida demonstrate the utility and wisdom of judicial nudges when penal politics are mired in incapacitation stagnation. For long-term sustainable change, however, we need guides for the political branches. The Article analyzes the potential of what it terms “rehabilitation pragmatism” to anchor reforms. Rehabilitation pragmatism is cautious and selective in choosing beneficiaries and attentive to the need for evidence of efficacy, cost-effectiveness and success. The Article argues that as we turn to such data-driven approaches in decisionmaking, the distribution of benefits and burdens across historically disadvantaged groups should be an important component of efficacy assessments. Performance measures should take into account human and community as well as fiscal costs. The Article also advocates penal impact analysis to curb the tendency to enact a thicket of criminal laws without consideration of systemic costs. Penal impact analysis provides for front-end examination of the fiscal consequences of criminal legislation, curbing the pathological politics of crime.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"90 1","pages":"581"},"PeriodicalIF":0.0,"publicationDate":"2011-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67749486","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}

引用次数: 5

University Software Ownership and Litigation: A First Examination. 大学软件所有权与诉讼:第一次审查。

North Carolina law review Pub Date : 2009-04-26 DOI: 10.2139/SSRN.996456

A. Rai, J. Allison, B. Sampat

{"title":"University Software Ownership and Litigation: A First Examination.","authors":"A. Rai, J. Allison, B. Sampat","doi":"10.2139/SSRN.996456","DOIUrl":"https://doi.org/10.2139/SSRN.996456","url":null,"abstract":"Software patents and university-owned patents represent two of the most controversial intellectual property developments of the last twenty-five years. Despite this reality, and concerns that universities act as \"patent trolls\" when they assert software patents in litigation against successful commercializers, no scholar has systematically examined the ownership and litigation of university software patents. In this Article, we present the first such examination. Our empirical research reveals that software patents represent a significant and growing proportion of university patent holdings. Additionally, the most important determinant of the number of software patents a university owns is not its research and development (\"R&D\") expenditures (whether computer science-related or otherwise) but, rather, its tendency to seek patents in other areas. In other words, universities appear to take a \"one size fits all\" approach to patenting their inventions. This one size fits all approach is problematic given the empirical evidence that software is likely to follow a different commercialization path than other types of invention. Thus, it is perhaps not surprising that we see a number of lawsuits in which university software patents have been used not for purposes of fostering commercialization, but instead, to extract rents in apparent holdup litigation. The Article concludes by examining whether this trend is likely to continue in the future, particularly given a 2006 Supreme Court decision that appears to diminish the holdup threat by recognizing the possibility of liability rules in patent suits, as well as recent case law that may call into question certain types of software patents.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"87 5 1","pages":"1519-1570"},"PeriodicalIF":0.0,"publicationDate":"2009-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67933936","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}

引用次数: 14

University Software Ownership and Litigation: A First Examination. 大学软件所有权与诉讼：第一次审查。

North Carolina law review Pub Date : 2009-01-01

Arti K Rai, John R Allison, Bhaven N Sampat

{"title":"University Software Ownership and Litigation: A First Examination.","authors":"Arti K Rai, John R Allison, Bhaven N Sampat","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Software patents and university-owned patents represent two of the most controversial intellectual property developments of the last twenty-five years. Despite this reality, and concerns that universities act as \"patent trolls\" when they assert software patents in litigation against successful commercializers, no scholar has systematically examined the ownership and litigation of university software patents. In this Article, we present the first such examination. Our empirical research reveals that software patents represent a significant and growing proportion of university patent holdings. Additionally, the most important determinant of the number of software patents a university owns is not its research and development (\"R&D\") expenditures (whether computer science-related or otherwise) but, rather, its tendency to seek patents in other areas. In other words, universities appear to take a \"one size fits all\" approach to patenting their inventions. This one size fits all approach is problematic given the empirical evidence that software is likely to follow a different commercialization path than other types of invention. Thus, it is perhaps not surprising that we see a number of lawsuits in which university software patents have been used not for purposes of fostering commercialization, but instead, to extract rents in apparent holdup litigation. The Article concludes by examining whether this trend is likely to continue in the future, particularly given a 2006 Supreme Court decision that appears to diminish the holdup threat by recognizing the possibility of liability rules in patent suits, as well as recent case law that may call into question certain types of software patents.</p>","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"87 5","pages":"1519-1570"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3674765/pdf/nihms364185.pdf","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"31493967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Critical Tax Theory: A Feminist Perspective on the QTIP Trust and the Unlimited Marital Deduction 批判税收理论:QTIP信托与无限婚姻扣除的女性主义视角

North Carolina law review Pub Date : 2009-01-01 DOI: 10.1017/CBO9780511609800.063

Joseph M. Dodge

引用次数: 0

Clear Notice for Conditions on Spending, Unclear Implications for States in Federal Healthcare Programs 关于支出条件的明确通知，联邦医疗保健计划对各州的影响不明确

North Carolina law review Pub Date : 2007-03-14 DOI: 10.2139/SSRN.972189

Nicole Huberfeld

{"title":"Clear Notice for Conditions on Spending, Unclear Implications for States in Federal Healthcare Programs","authors":"Nicole Huberfeld","doi":"10.2139/SSRN.972189","DOIUrl":"https://doi.org/10.2139/SSRN.972189","url":null,"abstract":"This article explores an important case from the 2005-06 Supreme Court term, Arlington Central School District Board of Education v. Murphy. Murphy is a benchmark for Spending Clause jurisprudence, as the new Roberts Court adopted what was the dissenting view for years, but its significance has gone largely unnoticed. Additionally, Murphy may have critical implications for the federalism revolution and for the country's largest healthcare programs. These broad observations are focused in this article by the example of the Clawback Provision, a new Medicaid requirement that has been challenged by New Jersey, Texas, Maine, Missouri, and Kentucky. The Supreme Court denied original jurisdiction, but the states are likely to proceed in district court (they stand to lose millions of dollars under the Clawback Provision). This article finds that the Murphy analysis alters long-standing Spending Clause doctrine in a way that is likely to narrow Congress' ability to place conditions on federal funds. Also, if the Court was seeking to strengthen the states' position regarding conditions on federal spending, it missed the mark because it ignores the reality of long-standing spending programs and states' inability to reject federal conditions in such programs (as with the Clawback Provision). This piece also observes that Congress could not have anticipated the clarity required by Murphy when drafting the Medicare and Medicaid statutes and that this new standard could have far-reaching effects on these forty-year-old healthcare programs. Ultimately, the article calls for a fresh look at spending power jurisprudence in light of both Murphy and long-entrenched spending programs such as Medicare and Medicaid.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"86 1","pages":"441"},"PeriodicalIF":0.0,"publicationDate":"2007-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67917393","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}

引用次数: 2

Child Support Savings Accounts: An Innovative Approach to Child Support Enforcement 儿童支持储蓄账户:儿童支持执行的创新方法

North Carolina law review Pub Date : 2007-01-01 DOI: 10.2139/ssrn.2214124

Monica Hof Wallace

引用次数: 0

The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus 联邦制的微妙解体:用州立法作为不断发展的国家共识的证据的不合逻辑

North Carolina law review Pub Date : 2005-09-26 DOI: 10.2139/SSRN.813124

Tonja Jacobi

{"title":"The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus","authors":"Tonja Jacobi","doi":"10.2139/SSRN.813124","DOIUrl":"https://doi.org/10.2139/SSRN.813124","url":null,"abstract":"The Supreme Court's cruel and unusual punishment jurisprudence increasingly relies on state legislation to establish whether a national consensus has evolved against particular forms of punishment. This article argues that trends in state legislation should not be a basis for interpreting the Eighth Amendment. Using state legislation to establish a national consensus is contrary to basic notions of federalism, and is so methodologically indeterminate as to be entirely subjective. The states were intended to be independent from one another's policy preferences, to allow them to act as policy-making laboratories for the nation. Resting constitutional interpretation on the preferences of a majority of states is antithetical to the federal system. In application, the use of state legislation creates doctrinal chaos. The Supreme Court cannot agree on how to characterize, group or count state legislation. Once legislation is counted, the Court cannot agree on what actually constitutes a \"consensus.\" Although the Court justifies its reliance on state legislation on the basis of its alleged objectivity, this uncertainty means that the use of state legislation is more subjective than traditional doctrines, such as culpability and proportionality. The lack of a clear standard as to what constitutes a national consensus has resulted in questionable findings, which in turn are relied on, creating an increasingly lax standard of cruel and unusual jurisprudence.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"54 1","pages":"1089-1158"},"PeriodicalIF":0.0,"publicationDate":"2005-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67834618","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}

引用次数: 7

Public Law Limitations on Privatization of Government Functions 公法对政府职能私有化的限制

North Carolina law review Pub Date : 2005-03-01 DOI: 10.2139/SSRN.681517

Paul R. Verkuil

{"title":"Public Law Limitations on Privatization of Government Functions","authors":"Paul R. Verkuil","doi":"10.2139/SSRN.681517","DOIUrl":"https://doi.org/10.2139/SSRN.681517","url":null,"abstract":"This article asks whether privatization has become so successful as to challenge inherent limits on private control of public functions. It reviews the history of the public-private distinction and explores constitutional limits on the exercise of public power in private hands, including important new scholarship on the nondelegation and exclusive delegation doctrines. The connection of due process to delegation is emphasized, especially procedural controls as accountability mechanisms for overseeing privatized activities. At the statutory level, the largely overlooked potential of the Subdelegation Act to limit as well as sanction delegations to public officials is elaborated. The current OMB A-76 process is addressed in detail. Holding public/private competitions over outsourced government functions is reviewed and its process deficiencies are highlighted. Under current interpretations, the basic question of what inherent government functions agencies cannot privatize is lost in the overall mandate to engage in competitive sourcing. Enhanced procedures for administrative review of this process, including a greater role for the Government Accountability Office (GAO), are recommended. Indeed, the article suggests that the A-76 process encapsulates the public-private debate in such a comprehensive way that the administrative law community can help reshape or rebalance that debate by reforming the process itself.","PeriodicalId":82179,"journal":{"name":"North Carolina law review","volume":"84 1","pages":"397"},"PeriodicalIF":0.0,"publicationDate":"2005-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.681517","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67797565","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}

引用次数: 17