STU Scholarly Works (St. Thomas University)
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Outrageous Virtue and the Spectacle of Prostitution: Dracula and the Contagious Diseases Acts
No full textBook: The Eyes of Justice: Seventh Round Table on Law and Semiotics
The general topic of this book, miscarried justice, is suggested by the title\u27s allusion to the sightlessness of the proverbial representation of justice. Viewpoints from several academic disciplines, e.g., philosophy, sociology, linguistics, criminal justice, literary criticism, and religious studies, are brought together with theories of law. This collection is not only interdisciplinary but cross-cultural as well. The common language is \u27legal semiotics\u27, in both a Peircean and non-Peircean idiolect. This collection is a rich, cross-referential research tool for investigators of law and semiotics in all its aspects.https://scholarship.stu.edu/faculty_book_chapters/1015/thumbnail.jp
Law and Minimum World Public Order
No full textBook: The International Law of Warhttps://scholarship.stu.edu/faculty_book_chapters/1033/thumbnail.jp
Skills Is Not a Dirty Word
No full textToday, legal education continues to resist the practical and is becoming increasingly more academic,\u27 focusing more on theoretical analysis than on the process by which a legal result is actually accomplished. By way of illustration, when confronted with a problem of learning how to ride a bicycle, academics start by studying the principles necessary to master bicycling. They visit the library and check out numerous books about bicycles, wind velocity, balancing, and equipment in an effort to learn how to ride a bike. Conversely, many excellent bicyclists simply climbed aboard a bicycle, and with their fathers running and pushing the bicycle eventually, without any understanding of the principles involved, mastered the ability to ride a bike. Complex thinking and analysis can get in the way of performance. Life rewards action; understanding is the booby prize. The process of doing is a valuable learning experience. When that process is combined with theoretical understanding, the learning experience is enhanced. The aim of this Article is to examine the place of skills in the law school curriculum and to urge that skills need not be considered a dirty word. Rather, skills should be integrated with the currently used socratic methodology and analytical doctrine for the betterment of legal education as a whole
Criminalization of an Epidemic: HIV-AIDS and Criminal Exposure Laws
No full textThis article is an adaptation of a roundtable discussion program presented during the Annual Meeting of the Association of American Law Schools in San Francisco on January 9, 1993. Professor Closen chaired the program in which Professors Bobinski, Hermann, Hernandez, Schultz, and Strader participated. Footnote material has been added
Truth, Justice, and the American Way: The Case against the Client Perjury Rules
No full textIn 1637, England\u27s dreaded Court of Star Chamber pronounced the sentence: John Bastwick, a Puritan activist,\u27 was to be pilloried twice with one ear cut off each time, imprisoned in perpetuity without books, pen, ink, or paper, stripped of his university degrees, and fined £5,000. Shortly before, he had been escorted up a twisting staircase in Westminster Palace and into a dark, cavernous room with stars painted on the ceiling to be tried on charges of criminal libel for having penned a political tract critical of the government. According to Star Chamber procedure, since Bastwick\u27s counsel refused to vouch for the truthfulness of his client\u27s version of the facts, Bastwick was precluded from placing his version of the truth before the tribunal and, instead, was deemed to have confessed. A century and a half later, the drafters of our Bill of Rights-haunted by the inquisitorial excesses of the Star Chamber and of Continental criminal proceedings-sought to ensure a balanced, adversarial encounter between criminal defendants and the state by providing defendants with the procedural protections of the Fifth and Sixth Amendments. Since the early 1900s, however, the legal profession has promulgated various codes of attorney conduct that, in addition to attempting to clarify the professional obligations of lawyers and seeking to minimize public pressure for the external regulation of the profession, have threatened these protections. Drafted by attorneys who are frequently insensitive to the dynamics of the adversarial process or hostile to procedural protections accorded criminal defendants, the rules of legal ethics contain provisions that fundamentally conflict with and undermine the adversarial pursuit of justice in our criminal proceedings. One of the most compelling and egregious examples is the set of rules governing the duty of criminal defense counsel who believes that the accused will testify or has testified untruthfully and who, at, the risk of criminal and professional sanctions, must not fail to withdraw from representation, denounce the client to the court, or both. These rules-the client perjury rules--closely resemble the odious Star Chamber requirement that defense attorneys vouch for the credibility of defendants who wish to present their account of the facts. The present rules of ethics thus create a hidden inquisition at the center of our adversarial criminal trials: a self-contained, summary inquiry, concealed from the view of the jury and the public, in which defense counsel must assume the role of inquisitor in assessing the veracity of the accused and the role of prosecutor in contending to the court that the client\u27s account of the facts is untruthful. In addition to undermining the basic structure of the adversarial system, the client perjury rules violate many of the individual rights accorded defendants under the Fourth, Fifth, and Sixth Amendments. Moreover, the rules are applied in a discriminatory manner based on race, class, and culture and impede the very search for truth they are touted to protect. Part I of this Article briefly sketches the ancient and modern history of the rules governing client perjury, their present scope, and the criticism they have generated. Part II presents the case against these rules, revealing the manner in which they violate principles of equal protection, subvert the constitutional guarantees designed to ensure a fair trial, upset the delicate balance of responsibilities within the constitutionally mandated structure of our criminal proceedings, and impair the discovery of truth in those proceedings. Part III critiques the potential responses of defense counsel to the seemingly perjurious criminal defendant, ultimately prescribing a solution that promotes both truth and justice
Special Legal Rules Related to Future Interests
No full textBook: Thompson on Real Property
Chapter Description: Future interests are regarded as the most complex aspect of American property law, partly because many of the basic legal doctrines are of ancient origin and forgotten rationale. Nevertheless, the doctrines, once mastered, are usually straightforward and reliable in application. It is probably inevitable that over the centuries those venerable doctrines would collect variants, exceptions and other special rules which, in their total impact, give additional substance to future interests’ reputation for complexity. In this volume whose chapters are devoted to the various future interests in American property law, it is fitting that this concluding chapter survey these special rules, exceptions and other observations that apply to the modern American law of future interests. The chapter first surveys definitions of words and terms, then explains some of the more important specialized and often obscure legal rules, and gives clarifying explanations to various concepts and relationships unique to future interests.https://scholarship.stu.edu/faculty_book_chapters/1042/thumbnail.jp
Equality of Arms and the Adversarial Process: A New Constitutional Right
No full textIn this Article, Professor Silver posits that a recent United States Supreme Court decision, Perry v. Leeke, demonstrates the Court\u27s undermining of fairness in our adversarial system. Professor Silver believes that Perry is a prime example of how the current Court has altered the delicate balance between the prosecution and defense functions in favor of the prosecution. Professor Silver advocates a constitutional right to an equality of arms to balance more evenly the scales of justice
Professionalism and the Hidden Assault on the Adversarial Process
No full textProfessionalism, according to the Report of the American Bar Association\u27s Commission on Professionalism, is an elastic concept the meaning and application of which are hard to pin down. The organized bar has equated the term with the spirit of public service, training in Professional Responsibility, and promoting Justice, Fairness, and Morality, principles which, in the abstract, are difficult to oppose. The report, of course, fails to mention that the elastic concept has been stretched by the organized bar to include measures which strike at the very heart of the adversarial process. The adversarial mode of adjudication mandated by the Constitution in our criminal proceedings has come under fire from other directions, as well. The Rehnquist Court continues to produce opinions that tilt the delicate balance of power between the prosecution and defense in favor of the state, and the tendency of prosecutors and judges to tolerate the perjury of police and other government witnesses exacerbates this imbalance. In addition, the plea bargaining process has long ago replaced adversarial trials in the vast majority of criminal cases. These inroads into the adversarial process, however, differ in a key respect from the current assault on the process mounted in the name of professionalism: only the latter is shielded from view and from open debate, thus curtailing the chances of restoring the integrity of our adversarial proceedings. Part II of this Article outlines the constitutional requirement of adversarial criminal adjudication and exposes the dark underside of the modem concept of professionalism: the attempted social control of women and minorities presently entering the bar in increasing numbers, as well as the subversion of the adversarial process and of the criminal defense lawyer\u27s inherent role in the process. Part Ill identifies the principal causes of these adverse effects: the organized bar\u27s efforts to subordinate counsel\u27s allegiance to her client in favor of a duty to the system in order to help rehabilitate the poor public image of lawyers and thus preserve the self-regulatory nature of the profession; the further erosion of counsel\u27s client-oriented role by imposing a duty to influence the client to pursue moral objectives; the bar\u27s attempt to mold the professional conduct of the women and minorities new to the profession to reflect the collusive gentility of an earlier, more homogeneous era of the bar; the profession\u27s distrust of criminal defense attorneys and the professionalism campaign\u27s resultant attempt to expand the powers of the trial judge, thus eroding the dominant role of opposing counsel in conducting the adversarial search for truth; the failure of proponents of the current concept of professionalism to recognize the nature and value of adversarial adjudication in legal proceedings; and their failure to distinguish between the effects of their proposed reforms on our criminal and civil proceedings. Finally, to promote the integrity of our criminal trials in the face of modem professionalism\u27s concealed assault on the adversarial process, Part IV summarizes the misconceptions and hidden agendas of which the organized bar\u27s concept of professionalism must be cleansed
The Juror\u27s Need to Know vs. The Constitutional Right to a Fair Trial
No full textThe right to a fair trial is a guarantee so fundamental that it was specifically accounted for by the Constitution itself. Even prior to becoming an enumerated concern of the nation\u27s charter, the right to a fair trial was well-established as a norm of ordered liberty. Consistent with that status, Justice Frankfurter observed that the fair administration of justice is one of the chief tests of a true democracy. \u27 Modern perimeters of the right to a fair trial primarily are a function of the judiciary\u27s power to say what the law is. Especially over the course of the twentieth century, as individual rights and liberties have commanded increasing attention from the Supreme Court, the right to a fair trial has developed an increasingly rich and complex history. The Court itself has start[ed] with the premise that the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government. Critical to the reality of a fair trial, therefore, is management of the process itself. An extensive collection of rules and decisions concerning access, evidence, procedure, availability of counsel, standards of review, questions of contempt and other issues comprises the law as relevant to fair trial interests. Ordinarily, the right to a fair trial is viewed in relation to a significant competing interest. From the necessary balancing that results, the tension between fair trial imperatives and rival constitutional or other interests is resolved. Analysis is more complicated when uncertainty exists with respect to whether a practice facilitates or impairs fairness of process. Typifying evaluative difficulty is the question of juror note-taking and juror-questioning. Advocates of such practice maintain that increased jury participation would maintain our Democratic tradition of citizen participation and improve the accuracy of the decision-making process, thereby enhancing the credibility of the jury and legitimizing the verdict. This theory of juror responsibility can be viewed as mandated by the due process clause which would serve to avoid erroneous jury decision-making. Critics complain that jury participation precludes their role as an independent fact-finder and is inherently a denial of due process and the right to a fair trial. Irrespective of the ongoing debate, the practical result is that litigants may lose everything they own. For example, consider if a bank and large developer convinced a litigant to take out a loan to invest the proceeds in a new strip mall. The market soured, and the same bank and large developer that assured the litigant that her investment was safe, later foreclosed on everything she owned. She decided to make a multiple court claim against the bank and developer. After two years of discovery and two failed settlement discussions, the case has just been tried, and today the jury gets instructions and begins deliberation. The jury must somehow digest and synthesize two weeks of testimony about promissory notes and deception. Looking at the jury as they are about to determine the course of a lifetime, the litigant and her attorney must wonder how it is possible for the jury to make its decision based on an educated review of the testimony. The jurors sat through sixty hours of testimony, most of it complex, some of it subtle. Not once were the jurors allowed to ask a question of any witness or to take notes during the trial. As another illustration, consider a drug freighter trial underway in the criminal courthouse. Twenty-seven Chilean crew men and one passenger fill five rows in the spectators\u27 gallery. They are wearing crisp new white and light blue shirts, they sit watching the trial while each man wears headphones piping a simultaneous spanish translation. Their lawyers, twenty-eight in number hired by the ships owners, sit elbow to elbow and are heard to comment that this is ridiculous and this is a nightmare. The defendants are comprised of the entire crew of the five-hundred foot freighter and one man who claims to be an indigent columbian stow away. The ship was seized by a Coast Guard cutter which was on patrol to interdict Haitians heading for the United States. Authorities found more than five tons of cocaine valued at 60,000,000 hidden in the cargo of powdered zinc. It is said to be one of the largest maritime cocaine seizures in U.S. history. The Coast Guard arrested everyone aboard charging them with possession with intent to distribute cocaine, conspiracy and attempted importation of drugs. The trial is expected to last a minimum of eight weeks. Each of the twenty-eight defense lawyers is entitled to cross-examine each witness, each cross-examination relating to different defendants in different charges. There are no two defendants against whom the evidence is the same other than the fact they were on the boat. How are jurors suppose to keep each of the sets of facts separate and give each defendant his own determination of guilt or innocence? The constitution guarantees each defendant the right to have the jury consider only the evidence specifically against him. Juror non-participation serves as more than a technicality or convenience. Because jurors generally are not allowed to ask questions of witnesses in the American legal system, the quality of jury deliberations is suspect. This is even more serious given the complexities and subtleties in the evidence of complex criminal cases and civil law suits.16 The integrity of one of the most important components of American jurisprudential theory - the jury - suffers because jurors possess no rational means of developing the evidence on their own in order to better understand and methodically analyze the evidence as a means of reaching a just verdict. In adversary proceedings, courts must balance the benefits and prejudices of trial practices and procedures among attorney, witness, litigants, juror and judicial system, in the search for truth. This article examines the jurisprudential question of whether jurors should be permitted to ask questions of witnesses, and take notes during a trial. Throughout, the article balances practical considerations with constitutional requirements and suggests that juror participation enhances a more rational and just decision-making process