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Trial in Absentia: Rescuing the Public Necessity Requirement to Proceed with a Trial in the Defendant\u27s Absence
Get PDFEchoes of the Impact of Webb v. McGowin on the Doctrine of Consideration under Contract Law: Some Reflections on the Decision on the Approach of Its 75th Anniversary
Get PDFJudicial Nullification of Juries: Use of Acquitted Conduct at Sentencing
Get PDFAt trial, defendants are afforded a panoply of rights right to counsel, to proof beyond a reasonable doubt, to confront witnesses, and to exclude inadmissible evidence. However, these rights, except for the right to counsel, disappear at sentencing. In deciding a defendant’s sentence, a court may consider conduct that has not been proven beyond a reasonable doubt and even conduct of which the jury has acquitted the defendant. Consideration of acquitted conduct has resulted in dramatic increases in the length of defendants’ sentences sometimes resulting in life imprisonment based merely on a judge’s finding that a defendant more likely than not committed the offense. Courts have relied on United States v. Watts and United States v. Booker to support their continued use of acquitted conduct at sentencing. This Article argues that Watts is not viable and that the merits majority opinion in Booker, as opposed to the remedial majority opinion, is most consistent with the Court’s precedent established by Apprendi v. New Jersey and its progeny. This Article concludes that use of acquitted conduct violates the Sixth Amendment right to a jury trial. In addition to offering a constitutional basis, this Article examines the following policy grounds for prohibiting the use of acquitted conduct: the role served by juries and benefits they provide, the dramatic impact of sentencing enhancements based on acquitted conduct, the potential for misuse by prosecutors, and the end of actual or legal innocence. Finally, this Article suggests that United States v. Gall and United States v. Kimbrough have restored judicial discretion in sentencing, providing judges with the independence to reject the use of acquitted conduct on the grounds that it contravenes the purposes of sentencing set forth in 18 U.S.C. § 3553(a) to promote respect for the law, afford deterrence, and avoid unwarranted disparity
The Decline and Fall of the American Judicial Opinion, Part I: Back to the Future from the Roberts Court to Learned Hand - Context and Congruence
Get PDFEarth Jurisprudence: The Moral Value of Nature
Get PDFAs planetary environmental crises advance toward us like an enormous oil spill, the call of Earth Jurisprudence has arisen, suggesting that a shift is necessary in the way that we think about law, governance, and nature. A predicate to rethinking law, however, is to reconsider the moral status of nature. This article posits that, to preserve a healthy planet for future generations of human beings - and for Earth itself - it is necessary to recognize Earth as the center of the moral community. As an ethical endeavor, the article turns the question of the moral status of nature through the lenses of four moral questions: what is good?; what is fitting?; what is true?; and what is right? This inquiry into the moral status of nature from the perspective of four moral languages makes several significant departures from contemporary legal and moral discourse. First, the philosophical heritage of the West place nature outside of the moral community. With human beings at the center of law and morality, nature is viewed as a collection of objects to be used as property owners see fit. As a consequence, the earth has suffered degradation. Moreover, some philosophers and scientists have called into question the continuation of the human species. The article proposes that acknowledging the moral status of the Earth community may also save humanity from itself. Second, to engage the question of the moral status of nature, the article unfolds a metaethical moral conversation that tests the premises and conditions of each of the four moral languages. In addition, the article will hatch a normative line of reasoning within each moral domain and will suggest bases for widening the moral circle to include nature. Third, in posing moral questions, the article asks how science informs or deforms the inquiry. Science has become increasingly important to legal and moral thought. Western legal philosophy is linked to the scientific findings of sixteenth and seventeenth century Enlightenment thinkers. However, climatologists and quantum physicists, among other postmodern scientists, are proffering challenges that completely undermine the premises of early modern legal and moral philosophy. It is time for law and morality to fast forward into twenty-first century post-modernity
