Keitner on Rights Beyond Borders

Chimene Keitner has posted a draft to SSRN titled, "Rights Beyond Borders." Here is the abstract:

Burgeoning scholarly interest in comparative constitutional
law, transnational criminal law, and national security law has
generated surprisingly little synthesis among these fields. The central
question of whether, and when, a country’s domestic rights regime
constrains government action beyond national borders has largely
escaped comparative analysis. This Article addresses this gap by
developing a conceptual framework for thinking about the
extraterritorial application of domestic rights guarantees, with a focus
on cases arising from the detention and interrogation of terrorism
suspects. Part I identifies three modes of reasoning about rights
beyond borders, which I label constitution as compact, constitution as
conscience, and constitution as code. Compact-based reasoning
focuses on the entitlement of a given individual to assert rights against
the government based on his or her personal status and/or territorial
presence. Conscience-based reasoning focuses the government’s
mandate to act solely in accordance with a defined set of national
values in all locations and circumstances. Code-based reasoning takes
a strictly territorial approach to restrictions on government action
outside the national territory, even vis-à-vis citizens. Part II examines
the evolving jurisprudence of extraterritorial rights in three
jurisdictions in light of these models: the United States under the U.S.
Constitution, Canada under the Canadian Charter of Rights and
Freedoms, and the United Kingdom under the U.K. Human Rights
Act. These three characterizations of ways of thinking about the
extraterritorial application of domestic rights regimes (compact,
conscience, and code) can provide a convenient vocabulary for
describing how domestic courts reason about specific challenges to
government action beyond national borders. They can also help us
think more systematically about how courts and other actors should
reason about rights beyond borders, as governments bring their
coercive power to bear on individuals in a variety of extraterritorial
circumstances.

Here's the cite:
http://ssrn.com/abstract=1480886

Lee on Frankfurter's "Federal Jurisdiction"

Evan Lee has published a review of Felix Frankfurter and Wilber G. Katz, Cases and Other Authorities on Federal Jurisdiction and Procedure (1931). The review is titled, "Federal Jurisdiction According to Professor Frankfurter," 53 St. Louis U. L. J. 779 (2009), and is part of a symposium on "Teaching Federal Courts." This essay is part of a larger project on the history of the doctrines that make up the "Federal Courts" or "Federal Jurisdiction" course.

Aviram Talks to Esquire (!) About Prisons

Hadar Aviram is interviewed in Esquire about the California correctional crisis here: http://www.esquire.com/the-side/richardson-report/prison-population-debate-072809

Leib on Direct Democracy and the Budget

Ethan Leib and Chris Elmendorf (UC Davis) have published an op-ed in the New York Times suggesting a long-term solution to budget standoffs in California: http://www.nytimes.com/2009/07/28/opinion/28leib.html

Marcus on the e-Lawyer

Rick Marcus has published an article titled, "The Electronic Lawyer," 58 DePaul L. Rev. 263 (2009), as part of a symposium called "The Challenge of 2020: Preparing a Civil Justice Reform Agenda for the Coming Decade." Rick acknowledges the many impacts that electronic communications have had, and will have, on the practice of law. He further acknowledges that electronic technologies may well portend a revolution in the medical profession. But he doubts that any analogous revolution is about to happen in the legal profession. He also cautions those who wax nostalgic about the golden age of lawyer-statesmen and who would attribute the worst features of modern law practice to techological advances. Electronic technologies "are only to a limited extent the cause of those aspects of practice that tempt some lawyers to despair," and the "current age, for all its difficulties, may have significant advantages over the [past]."

Leib Guest Blogging on Freakonomics

Ethan Leib and the co-authors of his latest book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, are guest blogging on Freakonomics. The link is here: http://freakonomics.blogs.nytimes.com/2009/07/09/family-values-and-the-law-a-guest-post/

Aviram on the Financial Sense Behind Prison Reform

Hadar Aviram has published an op-ed in the San Francisco Bay Guardian (June 2) in which she argues that the financial crisis provides California with an opportunity to engage in a fresh and frank cost-benefit analysis of its penal system. Here's the link: http://www.sfbg.com/entry.php?entry_id=8633

Little on Ruling Out Evidence Causing Wrongful Convictions

Rory Little has published an essay titled "Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes," 37 Southwestern Univ. L. Rev. 965 (2008), in which he proposes a model statute that would ban any capital prosecution based primarily on the types of evidence known to cause the conviction of innocent persons. The four types are (1) eyewitness (stranger) identification testimony; (2) confession; (3) criminal informant; and (4) unvalidated forensic evidence.

Aaronson on Empathy and Judging

Mark Aaronson has published an op-ed in the May 26 edition of the San Francisco Daily Journal defending empathy as a necessary ingredient of responsible judging. The issue has arisen in connection with criticisms of Supreme Court nominee Sonia Sotomayor.

Hazard on the Cultural Chasm Between Lawyers and Corporate Clients

Geoff Hazard has published an essay titled, "Legal and Managerial 'Cultures' in Corporate Representation," 46 Houston L. Rev. 1 (2009). The essay identifies six dimensions in which the culture of corporate clients and the culture of lawyers differ. (Geoff defines the "culture" of an organization as "the style and character in which its members typically behave in terms of effort, focus, efficiency, awareness, dedication, and ethical tone.) The six dimensions are (1) benefit versus burden; (2) certainty versus ambiguity; (3) subjectivity versus objectivity; (4) multiple versus single; (5) time horizons; and (6) task techniques. In writing this essay, Geoff conspicuously draws on Ascanio Piomelli's analysis of differences between low-pay clients and lawyers in "Cross-Cultural Lawyering by the Book: The Latest Clinical Texts and a Sketch of a Future Agenda," 4 Hastings Race & Pov. L. J. 131 (2006).

Paul on the Myths of Globalization

Joel Paul has published an essay in the Waseda University Journal of Comparative Law titled, "The Myth of Economic Interdependence." Joel denies the conventional wisdom that economic interdependence is increasing and unavoidable and further argues that, so long as we hold to this conventional belief, we are obscuring the difficult policy choices that need to be made. (This essay resulted from a lecture Joel delivered at the Waseda Law School on July 15 of last year.)

Aviram on Decisions to Imprison

Hadar Aviram has published a review of Rasmus Wandall's book, Decisions to Imprison: Court Decision-Making Inside and Outside the Law (Ashgate, 2007), which focuses on the question of when to imprison those convicted of crimes. Although Hadar would have liked some discussion of the impact of race and ethnicity, she found Wandall's book overall a "fascinating and important enterprise, which takes seriously what judges and other actors say, and not just what they do." The review is at 43(1) Law & Soc'y Rev. 239 (2009).

Leib on Criminal Justice and the Family

Ethan Leib, together with Dan Markel (Florida State) and Jennifer Collins (Wake Forest), has published a book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford University Press, 2009). Here is the abstract:

This book answers two basic but under-appreciated questions: first, how does the American criminal justice system address a defendant's family status? And, second, how should a defendant's family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discrimination? After surveying the variety of "family ties benefits" and "family ties burdens" in our criminal justice system, the authors explain why policymakers and courts should view with caution and indeed skepticism any attempt to distribute these benefits or burdens based on one's family status. This is a controversial stance, but Markel, Collins, and Leib argue that in many circumstances there are simply too many costs to the criminal justice system when it gives special treatment based on one's family ties or responsibilities. Privilege or Punish breaks new ground by offering an important synthetic view of the intersection between crime, punishment, and the family. Although in recent years scholars have been successful in analyzing the indirect effects of certain criminal justice policies and practices on the family, few have recognized the panoply of laws (whether statutory or common law-based) expressly drawn to privilege or disadvantage persons based on family status alone. It is critically necessary to pause and think through how and why our laws intentionally target one's family status and how the underlying goals of such a choice might better be served in some cases. This book begins that vitally important conversation with an array of innovative policy recommendations that should be of interest to anyone interested in the improvement of our criminal justice system.

Here is the OUP link: http://www.oup.com/us/catalog/general/subject/Law/?view=usa&ci=9780195380064

Mart on Internet Access to Government Information

Susan Nevelow Mart has published an article titled, "The Internet's Public Domain: Access to Government Information on the Internet," 12 No, 9 J. Internet L. 3 (2009). Here is the abstract:

This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.

Mart on Patriot Act Reauthorization

Susan Nevelow Mart has published an article called "The Chains of the Constitution and Legal Process in the Library: A Post-USA PATRIOT Reauthorization Act Assessment," 33 Okla. City U. L. Rev. 435 (2008). Here is the abstract:

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are such a potent symbol of democratic openness, the effect of the Patriot Act on libraries has acted in the public mind as a microcosm of the broader problems with the implementation of the Patriot Act. The public's discomfort with the civil liberties implications of the Patriot Act has turned out to be justified, as every agency that has reviewed the implementation of the Patriot Act has concluded that the government has not been able to maintain an appropriate balance between the need to protect civil liberties and the need to prevent terrorist acts. The government's list of domestic terrorist acts that have been prevented or punished is not inspiring: the entire panoply of tools authorized by the Patriot Act has not done much more than stop some home-grown right wing fringe groups and ecoterrorists. In light of the evidence of abuse of civil liberties and the questionable constitutionality of many of the Patriot Act's provisions, this paper suggests that the time for vigorous advocacy has not passed and that further legislative changes need to be made.