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Moral v. Immoral: Where Do Criminal Actions or Omissions Warrant a Free Exercise Exemption
No full textDid January 6 Defendants (Including Donald Trump) “Otherwise Obstruct an Official Proceeding”? Linguistic Analysis for the \u3ci\u3eFischer\u3c/i\u3e Case Before the Supreme Court
No full textWhen judges, skilled and sophisticated users of the English language, come to opposing conclusions about the “plain” or “ordinary” meaning of a phrase, how can such a conflict be resolved in an objective way? Traditionally courts have resorted to citing dictionary definitions, but in recent years an alternative approach has been gaining attention and respect: the use of corpus linguistics. The supreme courts of Michigan, Idaho, Utah, Vermont have used made use of corpus-based research in their decisions as has the U.S. Court of Appeals for the Third Circuit. Both the Sixth Circuit and the Ninth Circuit have requested that parties submit briefs using corpus-based research. More than 20 law review articles have been published in the past five years discussing the application of corpus linguistics to legal interpretation.
The case of Fischer v. United States, now pending before the U.S. Supreme Court, offers a clear example of the need for an objective, empirically based method for determining the “ordinary meaning” of a statute. The outcome of the Fischer case will not only potentially affect hundreds of persons indicted for their alleged direct involvement in the January 6 attack on the U.S. Capitol, but also former president Donald Trump, whose four-count indictment in a case pending in the U.S. District Court for the District of Columbia includes two counts based on the statute at issue in Fischer. The four judges who have already written opinions in the Fischer case all agree on the legal standard to be applied: “words [in a statute] generally should be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute.” However these four judges come to three different, inconsistent conclusions about what that ordinary meaning is.
The authors – a law professor and a linguistics professor – report in this paper the results of using linguistic analysis to investigate what the ordinary meaning of the contested statutory provision was at the time of enactment using the empirical methods of corpus linguistics. They are also filing a neutral amicus brief – in support of neither party – in the Supreme Court in the Fischer case reporting the results of the research described in this paper
Garrity Immunity and the U.S. Armed Forces
No full textThe U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by immunizing the employee’s statements from being used in any future criminal prosecution. Given that service member misconduct and on-the-job mishaps can have grave consequences in the military, Garrity has the potential to serve as a critical tool for the military commander.
This Article contends that despite the military’s separate and unique justice system and the increased protections against self-incrimination afforded to service members, as a matter of law, nothing prohibits the application of Garrity immunity to the military. Thus, this Article argues that, in certain circumstances and with appropriate safeguards, allowing military commanders to compel service members to answer questions that are directly related to their official duties under threat of administrative separation could promote the commander’s goal of achieving justice, good order and discipline, and the mission-readiness of his or her unit
The Key-Stone to the Arch : Unlocking Section 13\u27s Original Meaning
No full textThe Supreme Court of Pennsylvania holds that Section 13 of the State’s constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only punishments that are both “cruel and unusual.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This, says the court, is because Pennsylvania history does not provide evidence that the Commonwealth’s prohibition differs from the federal one. And without that historical basis, the court believes it is bound by federal precedent. This is mistaken.
History reveals that Pennsylvanians had a distinct, original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited the addition of any severity contemporary science deemed unnecessary for those ends. The historical record should thus provide, not prevent, a distinctly Pennsylvanian definition of cruelty.
This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Supreme Court of Pennsylvania interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments.
Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history supplies
Durability, Flexibility and Plasticity in the U.N. Convention on the Law of the Sea
No full textThe overall resilience of the U.N. Convention on the Law of the Sea during the forty years since its adoption in 1982—its durability, its flexibility and its plasticity in the face of myriad challenges that have unfolded over time—is largely attributable to certain design features within the Convention, to a willingness to ‘bend’ the Convention toward practical outcomes when necessary, and to the foresight of the drafters in closely tying the Convention to other agreements and standards, as well as to the general field of international law, so that the Convention might evolve as the world evolves. There are risks in flexibility and plasticity; in measured doses they promote resilience, while if taken too far they can erode confidence and support in the regime. Ultimately, such resilience rests on the good faith of States and other relevant actors in pursuing common ground in regulating a common space
Third-Party Litigation Finance: Law, Policy, and Practice, First Edition
No full textLitigation finance sits at the intersection of many well-known subjects within the law school curriculum: contracts, torts, civil procedure, evidence, professional responsibility, insurance, and capital markets. There are no professionally produced materials for a professor who wants to teach an entire semester-long course on litigation finance. This casebook is an attempt to fill that gap. Its ten chapters provide a foundation for a two- or three-credit class, although many of the chapters could also be used individually as supplemental material for a free-standing unit on litigation finance in another course, such as torts, civil procedure, or the law of lawyering. Notwithstanding the fact that the law of litigation finance is rapidly developing as investment in litigation and legal services grows, the cases and other materials contained in this book will remain relevant and useful to anyone trying to teach students about this important new body of law.
Benefits for instructors and students: Careful selection of the leading cases in the United States about the development and current law of assignment and litigation finance. Diverse selection of secondary source material, including major law review articles, as well as reports and advocacy materials from supporters and critics of litigation finance. Notes following the readings help the student progress through the materials in a logical and coherent manner.https://larc.cardozo.yu.edu/faculty-books/1125/thumbnail.jp
