McGeorge law review最新文献

Waving Goodbye to Non-Waivability: The Case for Permitting Waiver of Statutory Subject-Matter Jurisdiction Defects 告别不可放弃性:允许放弃法定标的管辖权缺陷的案例

McGeorge law review Pub Date : 2014-04-10 DOI: 10.2139/SSRN.2314633

Jessica J. Berch

{"title":"Waving Goodbye to Non-Waivability: The Case for Permitting Waiver of Statutory Subject-Matter Jurisdiction Defects","authors":"Jessica J. Berch","doi":"10.2139/SSRN.2314633","DOIUrl":"https://doi.org/10.2139/SSRN.2314633","url":null,"abstract":"It is axiomatic that defects in federal subject-matter jurisdiction may be raised at any time, even for the first time on appeal, and even if the parties involved in the cases do not dispute the federal courts’ power to decide the matters; likewise, subject-matter jurisdiction is deemed so important that federal courts should determine their jurisdiction before proceeding to other issues. These axioms are sometimes referred to as subject-matter jurisdiction’s “no-waiver rule” because they highlight the critical importance of the subject-matter jurisdiction inquiry. Recently, scholars have questioned whether the strict demarcation between jurisdictional and nonjurisdictional rules should be preserved, and whether it might make more sense to permit jurisdictional rules, at appropriate times, to take on certain nonjurisdictional attributes—such as the attribute of waiver. This Article engages with that scholarship with respect to the jurisdictional rules defining statutory subject-matter jurisdiction and the nonjurisdictional attribute of forfeiture or waiver and argues that efficiency, fairness, consistency, legitimacy, and transparency will all be enhanced if statutory subject-matter jurisdiction can, under certain circumstances, be waived. This Article further explains why such a change to the no-waiver rule will not adversely affect federalism values, as many courts and scholars opine. Despite the current no-waiver rule governing subject-matter jurisdiction, courts have waived, excused, or otherwise deferred the resolution of the subject-matter jurisdiction question until advanced stages of the proceedings. As courts create and expand these exceptions to the nowaiver rule and pretermit the subject-matter jurisdiction inquiry in order to tackle other (and often easier) issues, the gap between the “no waiver” rhetoric and actual application of that rule grows larger. This Article explores these exceptions and demonstrates that their ad hoc","PeriodicalId":87194,"journal":{"name":"McGeorge law review","volume":"45 1","pages":"635-693"},"PeriodicalIF":0.0,"publicationDate":"2014-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68094206","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

Religion and New Constitutions: Recent Trends of Harmony and Divergence 宗教与新宪法:和谐与分歧的最新趋势

McGeorge law review Pub Date : 2012-06-05 DOI: 10.2139/SSRN.2077274

J. Patrick

引用次数: 0

Special National Investigative Commissions: Essential Powers and Procedures (Some Lessons from the Pearl Harbor, Warren Commission, and 9/11 Commission Investigations) 国家特别调查委员会:基本权力和程序(来自珍珠港、沃伦委员会和9/11委员会调查的一些教训)

McGeorge law review Pub Date : 2009-10-01 DOI: 10.2139/SSRN.1493356

L. Cole

引用次数: 0

Property and Progress: Antebellum Landscape Art and Property Law 财产与进步:战前景观艺术与财产法

McGeorge law review Pub Date : 2008-08-08 DOI: 10.2139/SSRN.1212663

A. Brophy

{"title":"Property and Progress: Antebellum Landscape Art and Property Law","authors":"A. Brophy","doi":"10.2139/SSRN.1212663","DOIUrl":"https://doi.org/10.2139/SSRN.1212663","url":null,"abstract":"Landscape art in the antebellum era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property's role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain. Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate intellectual, moral, technological, and economic progress. The paintings thus remind us of how antebellum Americans understood property, as they struggled with the changes in the role of property from protection of individual autonomy of the eighteenth century to the promotion of economic growth in the nineteenth century.","PeriodicalId":87194,"journal":{"name":"McGeorge law review","volume":"40 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2008-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68151711","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: 3

Why Sentencing by a Judge Fulfills the Right to Jury Trial: A Comparative Law Look at Blakely and Booker 法官的量刑为何能实现陪审权:从比较法角度看布莱克利和布克案

McGeorge law review Pub Date : 2007-08-17 DOI: 10.2139/SSRN.1007871

Susan F. Mandiberg

{"title":"Why Sentencing by a Judge Fulfills the Right to Jury Trial: A Comparative Law Look at Blakely and Booker","authors":"Susan F. Mandiberg","doi":"10.2139/SSRN.1007871","DOIUrl":"https://doi.org/10.2139/SSRN.1007871","url":null,"abstract":"This article examines the basis for the United States Supreme Court's invalidation of twenty-five years of sentencing reform by state legislatures and Congress. Sentencing by a judge violates the Sixth Amendment right to jury trial when the legislature mandates the nature and weight of the sentencing factors; it does not violate that right when the judge has discretion within a range set by the legislature. The Court is using \"right to jury trial\" as a shorthand for the type of trial characteristic of the common-law tradition, in contrast to criminal trials in civil-law countries. The common-law tradition has long provided a trial in which the judge and jury as a unit act as a safety valve against harsh and overzealous legislative mandates. This model contrasts with the civil-law tradition, in which the trial court is essentially an administrative arm of the legislature. The article explores the differences along a variety of parameters including court structure; socialization of judges; and mechanisms controlling both fact finding and legal decision making, both generally and at sentencing. It concludes that the Court's sentencing decisions have reestablished a basic characteristic of our common-law tradition eliminated by the determinate sentencing schemes: a trial in which the legislature does not have the last word.","PeriodicalId":87194,"journal":{"name":"McGeorge law review","volume":"40 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2007-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68121799","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

Caught between paradise and power: public health, pathogenic threats, and the axis of illness. 陷入天堂与权力之间:公共卫生、致病威胁和疾病轴心。

McGeorge law review Pub Date : 2004-01-01

David P Fidler

引用次数: 0

Financial Abuse of the Elderly: Is the Solution a Problem? 经济虐待老人:解决方案是个问题吗?

McGeorge law review Pub Date : 2003-01-01 DOI: 10.2139/SSRN.461026

Carolyn L. Dessin

引用次数: 12

Fallen Superheroes and Constitutional Mirages: The Tale of Brady V. Maryland 堕落的超级英雄和宪法的幻影:布雷迪诉马里兰州的故事

McGeorge law review Pub Date : 2002-12-16 DOI: 10.2139/SSRN.361040

Scott E. Sundby

{"title":"Fallen Superheroes and Constitutional Mirages: The Tale of Brady V. Maryland","authors":"Scott E. Sundby","doi":"10.2139/SSRN.361040","DOIUrl":"https://doi.org/10.2139/SSRN.361040","url":null,"abstract":"This essay is based on a lecture given as part of the McGeorge School of Law's Distinguished Speaker Series. The essay examines Brady v. Maryland as one of the Warren Court's criminal procedure cases that has taken on superhero status, announcing not only an important procedural right, but doing so in ringing moral terms that forever associate the right with the case. In Brady, the majority crafted its holding that an accused has a constitutional right to material exculpatory evidence as embodying the prosecutor's ethical duty to pursue \"justice\" and not simply victory in the courtroom. By crafting the opinion in this way, Brady joined cases like Gideon, Miranda and Mapp as opinions that possess special rhetorical power because they are expressly founded upon fundamental values like equality, human dignity, and the morality of government. This essay argues, however, that subsequent cases have largely robbed Brady of its superhero powers as a pre-trial discovery doctrine. By setting a very high threshold before exculpatory evidence becomes \"material\" and must be turned over - evidence that \"could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict\" - the Court essentially has turned Brady from a pre-trial discovery device into a post-trial safety net to catch cases of government misconduct. Indeed, the essay suggests that the materiality standard is now so high that a prosecutor who discovers true Brady evidence prior to trial should ethically be considering dismissal of the charges, let alone the need to turn the evidence over to the defense. Because of Brady's limited usefulness as a pre-trial source for discovery, the essay urges that we not let the \"mirage\" of a constitutional right to discovery keep us from debating the need for broader discovery through statutory discovery rights and the rules of criminal procedure.","PeriodicalId":87194,"journal":{"name":"McGeorge law review","volume":"66 1","pages":"643"},"PeriodicalIF":0.0,"publicationDate":"2002-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68613027","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

Life-term inmates' right to procreate via artificial insemination: why so much fuss over the contents of a plastic cup? 终身监禁囚犯通过人工授精生育的权利:为什么对一个塑料杯的内容物如此大惊小怪?

McGeorge law review Pub Date : 2002-01-01

Lindsay S Harrington

引用次数: 0

Mandatory health insurance coverage for cancer clinical trials. 癌症临床试验的强制性医疗保险。

McGeorge law review Pub Date : 2001-01-01

L C Murphy

引用次数: 0