University of Richmond law review. University of Richmond最新文献

{"title":"Litigating Federal Health Care Legislation and the Interstices of Procedure,","authors":"W. Perdue","doi":"10.31228/osf.io/bgp7y","DOIUrl":"https://doi.org/10.31228/osf.io/bgp7y","url":null,"abstract":"Forward to the 2012 Allen Chair Symposium issue, focused on the litigation challenges to the Patient Protection and Affordable Care Act (\"ACA\").","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"42 1","pages":"691-694"},"PeriodicalIF":0.0,"publicationDate":"2012-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89204138","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":"Recognition: A Case Study on the Original Understanding of Executive Power","authors":"Robert J. Reinstein","doi":"10.2139/SSRN.1689203","DOIUrl":"https://doi.org/10.2139/SSRN.1689203","url":null,"abstract":"This article focuses on a question never before examined in the literature: what evidence is there that those who participated in the drafting and ratification of the Constitution understood that a plenary recognition power was being vested in the president? For at least a century, presidents have used the recognition power as an important tool in conducting and determining the content of the nation’s foreign policy. Although most exercises of presidential power have generated heated disputes between pro-presidentialist and pro-congressionalist scholars, there is little dispute about the recognition power. A string of Supreme Court decisions, dating back at least to 1937, states that recognition is a plenary power of the President; and scholars have both influenced and fallen into line with this view. Given this long historical stamp of approval, it may seem predictable that there has been little written questioning whether there is an originalist basis for a plenary executive recognition power. Yet the Constitution does not mention recognition, and it is easier to assert the existence of Executive power than to identify its source. After dismissing textualist arguments for the recognition power, this Article proceeds to a detailed originalist inquiry. Obtaining recognition from and establishing diplomatic relations with European countries were central aims of Congress during the War of Independence and Confederation period. Given this historical experience, which demonstrated the importance and dangers of the recognition power, one would expect that this subject would have been a matter of special attention in the Constitutional Convention and ratification debates. Yet, although the Anti-Federalists attacked, and the Federalists defended, every power that was thought to be vested in the President by the Constitution, there is no discussion, in all of the voluminous records that we possess, of either of the receive ambassadors or executive vesting clauses as being a source of executive power – and no discussion at all of the power to recognize foreign states or governments. The conclusion of this paper is that there is no originalist justification for a plenary executive recognition power. On the other hand, the article proposes an explanation for the founders’ silence that also precludes a firm conclusion that this power was deliberately denied to the President. The founders left a void in the Constitution.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"26 1","pages":"801-862"},"PeriodicalIF":0.0,"publicationDate":"2010-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76093002","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":"Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs","authors":"Anthony M. Dillof","doi":"10.2139/SSRN.1499990","DOIUrl":"https://doi.org/10.2139/SSRN.1499990","url":null,"abstract":"How much punishment, in terms of size and severity, should a person get for a given offense? Operating in a deontological framework, the article attempts to answer the question of criminal punishment severity in a unified, principled manner. There is a wide-spread intuition that \"harm matters.\" The article begins by critiquing harm-based retributivism. Proponents of harm-based retributivism believe that attempts should be punished less we feel, but how much less? One-half? Three-quarters? The problem with harm-based retributivism, it is argued, is that it cannot be extended in a principled manner to inchoate offenses, such as attempts. The related idea that an actor should be punished based on not the harm, but the risk he creates is considered. This approach, however, it is found wanting because it cannot be applied consistently to offenses of reckless harm-causing and reckless risk-creation. In response to these criticisms, the article presents an alternative to both harm-based and risk-based retributivism--modal retributivism. The essence of modal retributivism is that under it, the fact that harm results from wrongful conduct is not relevant to the severity of the sanction deserved, as it is under harm-based retributivism, but rather, it is relevant to the sanction's mode as precatory (\"should be imposed\") or permissive (\"may be imposed\"). With this theory in place, punishment levels for inchoate crimes, such as attempts and reckless endangerment, are recommended. Next, punishment levels for crimes of passion and negligence are considered with an eye toward setting punishment discount levels in a nonarbitrary manner.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"69 1","pages":"647-691"},"PeriodicalIF":0.0,"publicationDate":"2009-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90692290","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":"Combatants and the Combat Zone","authors":"M. O’Connell","doi":"10.2139/SSRN.1332096","DOIUrl":"https://doi.org/10.2139/SSRN.1332096","url":null,"abstract":"Following the attacks of 9/11, President George W. Bush declared that the United States was in a \"global war on terrorism\". His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"3 1","pages":"845-864"},"PeriodicalIF":0.0,"publicationDate":"2009-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72897514","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":"Rights and Obligations of Americans in Mexico in Immigration Law and in Other Areas of Mexican Law","authors":"J. A. Vargas","doi":"10.2139/SSRN.962176","DOIUrl":"https://doi.org/10.2139/SSRN.962176","url":null,"abstract":"Recent studies in Mexico suggest that the presence of U.S. citizens in Mexico is becoming larger, more varied and more permanent in that country. Mexico's Secretariat of Tourism (Sectur) reports that twenty million Americans visited Mexico as tourists in 2005. Today, according to INEGI (National Institute on Statistics, Geography and Information), a total of 492,617 foreigners live in Mexico today, out of which 477,838 are Americans. This article discusses the rights and obligations of Americans while residing in Mexico as Temporary residents or Permanent residents (Inmigrados). The article starts with the legal definition of a \"Foreigner\" (Extranjero) and discusses each of the constitutional rights (Garantias individuales) that Mexico's 1917 Federal Constitution prescribes in favor of foreign nationals. A special section is devoted to describing the different immigration categories (with their respective rights and obligations) within each of these two large groups: Immigrants and Non-Immigrants, pursuant to Mexican Immigration Law. The article ends with a discussion on the special legal restrictions imposed by Mexican law upon foreigners regarding the entering into certain \"Legal Acts and Contracts\" and the ways of becoming a Mexican citizen by naturalization.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"42 1","pages":"839-890"},"PeriodicalIF":0.0,"publicationDate":"2007-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84945359","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":"Pay Now, Execute Later: Why Counties Should Be Required to Post a Bond to Seek the Death Penalty","authors":"Adam M. Gershowitz","doi":"10.2139/SSRN.956380","DOIUrl":"https://doi.org/10.2139/SSRN.956380","url":null,"abstract":"When death sentences are reversed - and many of them are reversed for prosecutorial misconduct, ineffective assistance of counsel, and other reasons - local prosecutors are not forced to fully internalize the costs of their failed prosecutions. While counties make the decision to seek the death penalty, they do not have to fund the very expensive appellate and post-conviction stages of capital cases that are typically handled by state attorneys general's offices. This paper proposes that state legislatures could improve the functioning of the death-penalty system, while simultaneously acting out of financial self-interest, by requiring counties to post (and possibly forfeit) a bond to seek the death penalty. Faced with the prospect of losing a bond if the capital prosecution fails at trial or on appeal, local prosecutors would have an incentive to choose their capital cases more carefully and to avoid any type of misconduct that might lead to reversal on appeal. The prospect of forfeiting a bond also would create secondary benefits, such as encouraging prosecutors to protest the appointment of unqualified defense lawyers in order to stave off ineffective assistance of counsel claims. As a financial matter, the bond proposal should be appealing to state legislators because it would shift the exorbitant costs of failed capital prosecutions away from state budgets and into the hands of the county actors who instigated the failed prosecutions.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"31 1","pages":"861-896"},"PeriodicalIF":0.0,"publicationDate":"2007-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87609223","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":"An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, the Doctrine of Chances","authors":"E. Imwinkelried","doi":"10.2139/SSRN.795725","DOIUrl":"https://doi.org/10.2139/SSRN.795725","url":null,"abstract":"In the past 35 years, the doctrine of objective chances has emerged as one of the most important non-character theories of logical relevance. When a person suffers a particular type of loss with extraordinary frequency, the coincidence is circumstantial evidence that one or some of the incidents were not accidents. The courts accept the evidence because the relevance of the evidence arguably rests on the objective improbability of so many accidents rather than any assumptions about the defendant's personal, subjective bad character. When a civil rights plaintiff wants to prove discriminatory animus, she frequently offers evidence of other allegedly discriminatory acts by the defendant. When an accused denies any knowledge of drugs found in an automobile he was driving, the prosecutor often presents testimony about other occasions when the accused was arrested with drugs in his possession. Perhaps most importantly, in a child abuse prosecution in which the accused claims that the child's injury was accidental, the prosecutor typically offers testimony about other injuries sustained by that child or other children in the accused's custody. The probative value of the evidence seems so obvious that many would regard it as an affront to common sense to exclude the evidence. However, in the past ten years, there has been growing criticism that the doctrine of chances lacks legitimate non-character relevance. The thrust of the criticism is that evidence admitted under the doctrine is irrelevant unless one assumes that the defendant has a constant, unchanging propensity over time. If based on that criticism the courts begin to exclude the evidence admitted in the past under the doctrine, that development will increase the pressure to abolish what remains of the character evidence prohibition. Within the past decade, Congress has selectively abolished the prohibition in sexual assault and child molestation cases; and 10 states have followed suit. If the courts begin to routinely exclude this highly probative evidence in child abuse prosecutions and civil rights actions, as a backlash the character evidence prohibition itself might be abolished. The thesis of this article is that the criticisms of the doctrine of chances are mistaken. The article argues that evidence admitted under the doctrine possesses genuine non-character relevance. The criticisms rest on a simplistic, determinist view of human behavior. Doctrine of chances reasoning enables the trier of fact to negatively reject the hypothesis that random chance accounts for all the outcomes. By allowing the trier to reject that hypothesis, the evidence affirmatively increases the probability that one or some of the incidents are the product of situational choice, not prompted by the person's character traits. There may be a case for abolishing the character evidence prohibition, but that case cannot be premised on the argument that the doctrine of chances is a spurious non-character theory.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"172 1","pages":"419-462"},"PeriodicalIF":0.0,"publicationDate":"2005-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79547378","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":"Criminal Law and Procedure","authors":"A. J. Campbell","doi":"10.2307/1072119","DOIUrl":"https://doi.org/10.2307/1072119","url":null,"abstract":"The 1998 session of the General Assembly was a relatively quiet one in the field of criminal law and procedure, or at least in what traditionally has been considered part of that field. Few changes were made in areas such as the elements of criminal offenses or pretrial and trial procedure. The General Assembly was more active in areas that are less traditional but that more and more are being linked to the administration of criminal justice. The most extensive changes were to the state’s juvenile justice laws, which govern juveniles alleged to be delinquent or undisciplined. Those changes are discussed in Chapter 13 (Juvenile Law). The General Assembly also passed the Crime Victims’ Rights Act, implementing the state constitutional amendment on victims’ rights passed by the North Carolina voters in 1996. The first part of this chapter discusses the victims’ rights legislation. The remainder describes other criminal legislation, primarily affecting controlled substance offenses but also addressing a few other criminal offenses and miscellaneous aspects of criminal procedure. Many of the changes with respect to criminal law and procedure appear in the Current Operations and Capital Improvement Appropriations Act of 1998, S.L. 1998-212 (S 1366), which will be referred to here simply as the 1998 Appropriations Act. Readers interested in criminal law and procedure also should consult Chapter 6 (Courts and Civil Procedure), Chapter 19 (Motor Vehicles), and Chapter 23 (Sentencing, Corrections, Prisons, and Jails). Chapter 23 and Chapter 6 discuss changes in the authority of trial courts to order restitution as part of a defendant’s sentence. Chapter 19 discusses changes in the state’s impaired-driving laws, including changes in the procedure for forfeiture of motor vehicles involved in impaired-driving offenses.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"58 1","pages":"147 - 150"},"PeriodicalIF":0.0,"publicationDate":"2005-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82283949","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":"Apprendi's Limits","authors":"R. Green","doi":"10.2139/SSRN.587922","DOIUrl":"https://doi.org/10.2139/SSRN.587922","url":null,"abstract":"This article argues that the recent decision Blakely v. Washington did not decide, explicitly or implicitly, whether the Federal Sentencing Guidelines are constitutional. It also claims that the best theory of jury-trial rights under Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The idea that the legislative character of statutory maxima is important stems from separation of powers principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict. Any sentence below the sentence authorized by the jury is constitutionally permissible, regardless of whether that sentence is determined by rule (per the Guidelines) or by discretion (per indeterminate sentencing). Finally, the article suggests that the chaos arising after Blakely sheds light on the roles of certain repeat-player institutions that participate in constitutional rulemaking.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"10 1","pages":"1155-1234"},"PeriodicalIF":0.0,"publicationDate":"2004-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86181884","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":"Norms and Signals: Some Skeptical Observations","authors":"P. Mahoney","doi":"10.2139/SSRN.291538","DOIUrl":"https://doi.org/10.2139/SSRN.291538","url":null,"abstract":"This essay discusses Eric Posner's book Law and Social Norms, focusing on Posner's theory of norm adherence as a costly signal of an individual's discount rate. The attention to discount rates and a broad set of social dilemmas makes the book a welcome addition to the law and economics literature on social norms. The essay, however, questions whether costly signaling solves social dilemmas as frequently as Posner contends and identifies several empirical puzzles with which the theory must contend. One is that ethnic discrimination, adherence to traditional gender roles, and participation in demonstrations and other mass actions, each of which the theory suggests is used to signal a low discount rate, appear to be more prevalent among individuals with relatively high discount rates. Other puzzles are developed in a discussion of shaming punishments, one of the examples Posner uses to illustrate the signaling theory.","PeriodicalId":83423,"journal":{"name":"University of Richmond law review. University of Richmond","volume":"11 1","pages":"387-406"},"PeriodicalIF":0.0,"publicationDate":"2001-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73056175","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}