Valparaiso University law review. Valparaiso University. School of Law最新文献

{"title":"How Frank Easterbrook Kept George Ryan in Prison","authors":"A. Alschuler","doi":"10.2139/SSRN.2814148","DOIUrl":"https://doi.org/10.2139/SSRN.2814148","url":null,"abstract":"This lawyer’s memoir tells the story of my unsuccessful representation of former Illinois Governor George Ryan in the U.S. Court of Appeals for the Seventh Circuit. It describes how, in opinions authored by Judge Frank Easterbrook, the court made six rulings in favor of the government the government had not sought. All of these rulings were questionable or worse, and the court afforded Ryan no opportunity to address most of them until after Judge Easterbrook’s opinions had been published. In addition, the memoir documents eight falsehoods told by Judge Easterbrook in written opinions and statements from the bench. These falsehoods included statements that the trial court gave instructions it did not give, that both the defendant and the government made arguments they did not make, that litigants in the Supreme Court made arguments they did not make, that the defendant and the government waived or forfeited arguments they did not waive or forfeit, that the Supreme Court said things it did not say, and that several of the defendant’s sentences had expired when they had not expired. I note that Judge Easterbrook’s appearance on the panel that heard Ryan’s appeal was not the result of random assignment and show that the government played no part in producing his falsehoods.","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"46 1","pages":"7-87"},"PeriodicalIF":0.0,"publicationDate":"2016-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82187462","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":"White Backlash in a Brown Country","authors":"T. Smith","doi":"10.2139/SSRN.2759695","DOIUrl":"https://doi.org/10.2139/SSRN.2759695","url":null,"abstract":"Discourse on “white backlash” implicitly references whites’ reaction to some perceived civil rights excess but fails to identify a more systemic etiology. In this article, Professor Terry Smith employs clinical psychology to analyze white backlash as symptomatic of whites’ addiction to privilege. Noting that the United State Supreme Court has only once even invoked the term “white backlash” despite its recurrence throughout American history, Professor Smith argues that this judicial reticence is due in part to the Court’s participation in reactionary resistance to civil rights progress. Using the diminished electoral fortunes of Democrats during the Obama presidency as a foundation, Smith argues that a new white backlash is occurring just as the nation is accelerating its transition from a white to a brown population. The article explores how this demographic shift differentiates current white backlash from past eras, as evidenced by, among other indicia, the emergence of a “new white nationalism” that has formed an imbricate relationship with modern political conservatism. The article concludes by discussing the ways in which the two major political parties are adapting to and exploiting the browning of the country and white trauma in response to the same.","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"22 1","pages":"89-132"},"PeriodicalIF":0.0,"publicationDate":"2016-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77683670","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":"Opening Hart's Concept of Law","authors":"Richard K. Sherwin","doi":"10.2139/SSRN.2664301","DOIUrl":"https://doi.org/10.2139/SSRN.2664301","url":null,"abstract":"It has been said that philosophy is a quest for the \"beginnings\" of things. In our psychological age, it may not be surprising to discover that originary images of man confront the philosopher's backward glance. Yet, the changes in such images from classical to modern times are not without a curious irony. For from Aristotle's grounding of ethical theory in the final good embodied in man's transcendent nature, we rudely encounter Hobbes' hard, modern vision. In the Hobbesian psychology, man is riddled by fear of violent death and ruled by an unquenchable passion to dominate his fellows.","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"77 4 1","pages":"385-411"},"PeriodicalIF":0.0,"publicationDate":"2015-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89238714","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":"Is Full Marriage Equality for Same-Sex Couples Next? The Immediate and Future Impact of the Supreme Court's Decision in United States v. Windsor","authors":"C. Archibald","doi":"10.2139/SSRN.2312079","DOIUrl":"https://doi.org/10.2139/SSRN.2312079","url":null,"abstract":"As people across the political spectrum sat on the edge of their seats last summer, the Supreme Court waited until the last possible moment to issue its two same-sex marriage decisions. One, decided on a technicality, did nothing to answer the question of whether same-sex couples have a constitutional right to marry. The other, United States v. Windsor, was a landmark decision, as it struck down Section 3 of the Federal Defense of Marriage Act and found that same-sex couples validly married under state law must have their marriages recognized under federal law. However, the Windsor opinion limits its holding to “those in lawful marriages,” and so has no immediate effect on the laws of the more than 30 states where same-sex marriage is still prohibited. This article will analyze the Windsor opinion and show how it makes it more likely that courts in the future will find that state same-sex marriage prohibitions are unconstitutional.","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"13 1","pages":"695-713"},"PeriodicalIF":0.0,"publicationDate":"2014-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80945147","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":"Using the DNA Testing of Arrestees to Reevaluate Fourth Amendment Doctrine","authors":"S. Grossman","doi":"10.2139/SSRN.2510433","DOIUrl":"https://doi.org/10.2139/SSRN.2510433","url":null,"abstract":"With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.More recently governments have enacted laws permitting or directing the taking of DNA samples from those arrested, but not yet convicted, for certain serious crimes. Courts had been far more divided about the constitutionality of DNA testing for arrestees than they were for the comparable testing of those already convicted of crimes. Given the division in the holdings among both state and federal courts and the increasing importance of DNA evidence in criminal investigations, it was hardly surprising that the Supreme Court agreed to hear a case regarding the constitutionality of a Maryland statute allowing for such testing.Section II of this article will provide a brief description of the science of DNA testing as it is used in the criminal justice system. Section III will discuss the Supreme Court's decision in Maryland v. King. Section IV will address the argument of the opponents of the DNA testing of arrestees - that it violates the presumption of innocence. The chief focus of the article will appear in Sections V and VI, which will respond to the arguments posed by those who claim such testing violates the Fourth Amendment. Section V will address the balancing test for such searches and seizures long employed by the Supreme Court. Section VI describes and critiques the use of the primary purpose test as an important factor in determining whether the Fourth Amendment has been violated. This test looks to whether the primary purpose of the government's search or seizure was something other than to ferret out ordinary criminal wrongdoing, and only in such situations excuses the absence of individualized suspicion.","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"2016 1","pages":"659-721"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86265547","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":"Preliminary Thoughts on an Attorney-Client Privilege For Law Firms: When a Current Client Threatens to Sue the Firm for Malpractice, Does the Privilege Apply to the Firm's Consultation with In-House Counsel About the Potential Claim?","authors":"E. Imwinkelried","doi":"10.2139/SSRN.2333722","DOIUrl":"https://doi.org/10.2139/SSRN.2333722","url":null,"abstract":"This article deals with a significant, timely problem facing the legal profession. The problem is significant because the number of malpractice claims filed against attorneys is steadily increasing. The article cites a 2012 American Bar Association study finding more than a 30% increase in the number of claims reported between 2007 and 2011. The problem is also timely because of two 2013 state supreme court decisions. Until recently, the majority view was that if a current outside client threatened its firm with a malpractice claim, the attorney-client privilege did not apply to the consultations between the firm members representing the client and in-house counsel responsible for issues such as ethics and risk management. Thus, in any subsequent malpractice litigation, the former client could discover any written records of the internal consultations and depose firm members about related oral communications. However, on July 10, 2013, the Supreme Judicial Court of Massachusetts decided to recognize an intra-firm privilege; and on the very next day, July 11, 2013, the Georgia Supreme Court arrived at the same conclusion. The thesis of the enclosed article is that the Georgia and Massachusetts courts arguably reached the right result. The first part of this article is descriptive, surveying the current split of authority. The second and third parts are evaluative. The second part addresses the threshold question of whether the courts should recognize an intra-firm privilege in any circumstances. The second part criticizes the majority view and, in particular, challenges traditionalists' reliance on the so-called fiduciary exception to the attorney-client privilege. The third part attempts to identify the circumstances in which the courts ought to uphold an infra-firm privilege. Initially, the third party reviews the internal procedures that the firm ought to put in place to establish its status as the client of the in-house counsel. The third party then turns to the thorny question of whether the firm may engage in such internal consultations even without the outside client's consent. The article suggests that the argument for requiring the client's consent misconceives an evidentiary issues as an ethics question. Given the paucity of authority in point and the recency of the Georgia and Massachusetts decisions, the article does not purport to offer a definitive analysis of these issues. However, legal malpractice claims are so common and the interests of the bar and its clientele are so vital that the current split of authority is unsatisfactory. The intent of this article is to prompt a deeper, more robust debate over these issues.","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"8 1","pages":"715-755"},"PeriodicalIF":0.0,"publicationDate":"2013-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88001261","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":"Reasonable Accommodations on the Bar Exam: Leveling the Playing Field or Providing an Unfair Advantage?","authors":"Amanda M. Foster","doi":"10.2139/ssrn.2313098","DOIUrl":"https://doi.org/10.2139/ssrn.2313098","url":null,"abstract":"If you ask law students what they think about examination accommodations provided to students with disabilities, including learning disabilities, most students will tell you that it is unfair that some students get more time to take an examination. The misconception that accommodations provide an unfair advantage may stem from the fact that not all students understand the Americans with Disabilities Act (“ADA”), its purpose, and reasons why individuals receive such accommodations. In fact, the ADA has applications beyond the employment context. Specifically, the ADA ensures that students with disabilities who graduate from medical school, law school, and other professional programs cannot be discriminated against in their educational programs and are entitled to “nondiscrimination and reasonable accommodation in the licensing process.” This article suggests, because of the ADA Amendments Act of 2008 (“ADAAA”), more students should now be able to qualify for reasonable accommodations in the bar exam setting. Part One of this article discusses the background of the ADA, the Amendments and how the various state bar examinations are implicated. The New York State Bar exam, whose treatment of accommodation requests typifies state bar exam practices, is a principal focus. In Part Two, this article analyzes how courts have decided ADA cases where law graduates were either not considered to be disabled or were denied the accommodations they sought before and after the 2008 Amendments. Part Two considers whether there will be future litigation in the ADA, higher-education, bar exam setting and how courts should handle such litigation.","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"29 1","pages":"661-693"},"PeriodicalIF":0.0,"publicationDate":"2013-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73523066","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":"Legal Realisms, Old and New","authors":"B. Leiter","doi":"10.2139/SSRN.2079819","DOIUrl":"https://doi.org/10.2139/SSRN.2079819","url":null,"abstract":"“Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the \"Realist program\": from political scientists who study judicial behavior, to the \"law and society\" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share? I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions (\"the Skeptical Doctrine\") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by \"new\" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the \"primitive\" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such \"field work\" would be unnecessary on Llewellyn's view.","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"75 1","pages":"949"},"PeriodicalIF":0.0,"publicationDate":"2013-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74172034","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 Legal Advisor's Responsibility to the International Community: When Is Legal Advice a War Crime?","authors":"Ellia Ciammaichella","doi":"10.5750/DLJ.V18I1.311","DOIUrl":"https://doi.org/10.5750/DLJ.V18I1.311","url":null,"abstract":"Practically every attorney in every state of the United States of America takes an oath to uphold the US and that state’s Constitution. Upon taking the oath, most US lawyers become an officer of the court (“judicial officer”). As an officer of the court they are held to a higher standard of integrity and candor as is required by that state’s professional responsibility rules. As such, although an attorney is an advocate for his client, in some situations, an attorney must set aside his role as advocate and assert his role as judicial officer to maintain the integrity of the judicial system and uphold the US and state Constitution. The constant tension between an attorney’s role as judicial officer and advocate occurs because giving advice about the law an attorney’s main purpose and often that advice may further criminal conduct. However, as Professor Newman eloquently put it, “[n]either the status of ‘lawyer’ nor the obligation to provide access to the law should exempt lawyers from the criminal liabilities which face everyone else.” While Professor Newman was specifically referring to a lawyer’s responsibility in the domestic sphere, this is equally applicable to a legal advisor’s responsibility to the international community. Concededly, an attorney does not take an oath to uphold international law. However, because a lawyer should not be exempt from the law, each and every attorney, like everyone else, should be legally responsible to the international community. This article argues that there are some limited situations where a lawyer, specifically a government legal advisor, has certain basic legal responsibilities to the international community that trump his responsibility to his government. As the Nuremberg trials emphasized, no government official is immune from an international crime simply because he is acting within his official capacity. Rather, because the State cannot act without people to act on","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"23 1","pages":"1143-1164"},"PeriodicalIF":0.0,"publicationDate":"2012-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84970811","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":"State Court Evasion of United States Supreme Court Mandates: A Reconsideration of the Evidence","authors":"Ronald Schneider","doi":"10.2307/793288","DOIUrl":"https://doi.org/10.2307/793288","url":null,"abstract":"","PeriodicalId":83444,"journal":{"name":"Valparaiso University law review. Valparaiso University. School of Law","volume":"23 1","pages":"191-195"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86579043","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}