David Gelfand: A Tribute Article
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Recommended Citation
Michèle Alexandre, David Gelfand: A Tribute, 37 Urb. Law. 641 (2005)Clicking on the button will copy the full recommended citation.
2005
Doctrinal Myths and the Management of Cognitive Dissonance: Race, Law, and the Supreme Court’s Doctrinal Support of Jim Crow Article
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Recommended Citation
James W. Fox, Doctrinal Myths and the Management of Cognitive Dissonance: Race, Law, and the Supreme Court’s Doctrinal Support of Jim Crow, 34 Stetson L. Rev. 293 (2005)Clicking on the button will copy the full recommended citation.
This article, published in 2005 as part of a symposium on Brown v. Board of Education, addresses the contradiction between long-professed and deeply-held equality and liberty principles and a devastating history of racism manifest itself in the Supreme Court’s doctrinal support for Jim Crow segregation. I argue that the Supreme Court managed this dissonance between the legal ideal of equality and the actual practice of racial subordination through the implementation of doctrinal myths, myths which enabled white legal actors and society to retain a formal belief in equality. Through the doctrinal myths of state action, federalism, separate-but-equal, and reasonable segregation, the Court was able to facilitate the white South’s re-establishment of legalized white supremacy, which contravened the basic principles of Reconstruction and the Reconstruction Amendments to the Constitution, and yet at the same time argue that it was all along implementing and preserving the equality ideals of those very Amendments. I also consider how, by studying this period of doctrinal myth-creation, we can perhaps more fully analyze current doctrines affecting racial and legal equality, and, in particular, how appeals to the doctrinal rhetoric of equal citizenship may or may not result in actual movement towards that principle even in the face of societal racial subordination.
Arthur Andersen, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice? Article
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Recommended Citation
Ellen S. Podgor, Arthur Andersen, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice?, 44 Washburn L.J. 583 (2005)Clicking on the button will copy the full recommended citation.
Obstruction of justice, with its many different statutes, is a crime that prosecutors can use with relative ease. It covers a wide breadth of activity and has few limitations. This paper examines the prosecutorial use of obstruction charges in the cases of Martha Stewart and Arthur Andersen, LLP. Although the statutes differed in these two prosecutions, with Arthur Andersen, LLP., prosecuted for the crime of obstruction of justice under 18 U.S.C. Section 1512, and Martha Stewart, prosecuted for several criminal charges including obstruction of justice under 18 U.S.C. Section 1505, both demonstrate how prosecutors can leave unfinished the original activity that was the subject of investigation to proceed with the easier obstruction charge.
This article provides a way to restrict prosecutors in their use of the crime of obstruction of justice when it is used solely for expediency purposes. In essence, it reads in an element of materiality as required for this crime in a manner similar to how the Supreme Court included materiality for fraud prosecutions. By adding an element of materiality as a requirement for an obstruction conviction, prosecutors are forced to complete investigations that can be completed on the substantive charges. In contrast, investigations that cannot continue because the obstructive conduct precludes continuation because of either destruction of evidence or intimidation of witnesses, still have available the ability to appropriately punish the activity via a charge of obstruction of justice.
Controlling Passion: Adultery and the Provocation Defense Article
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Recommended Citation
Susan D. Rozelle, Controlling Passion: Adultery and the Provocation Defense, 37 Rutgers Law Journal 197 (2005)Clicking on the button will copy the full recommended citation.
Adulterous wives, especially those caught in the act, are classically provoking. Conventional wisdom explains that the ordinary, reasonable, otherwise law-abiding person cannot be expected to control himself when faced with an actively faithless spouse - or at least, control becomes so hard to maintain that a defendant who kills under those circumstances may be partially excused. But the conventional wisdom is wrong: most people can control themselves under such circumstances. Instead, provocation is properly grounded in justification, and should be permitted only to those defendants who were legally entitled to use some amount of force when they killed.
Foreword, Overcriminalization: The Politics of Crime Article
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Recommended Citation
Ellen S. Podgor, Foreword, Overcriminalization: The Politics of Crime, 54 Am. U. L. Rev. 541 (2005)Clicking on the button will copy the full recommended citation.
Jose Padilla and Martha Stewart: Who Should Be Charged with Criminal Conduct? Article
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Ellen S. Podgor, Jose Padilla and Martha Stewart: Who Should Be Charged with Criminal Conduct?, 109 Penn St. L. Rev. 1059 (2005)Clicking on the button will copy the full recommended citation.
What Happens When a Wetland Mitigation Bank Goes Bankrupt Article
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Royal C. Gardner and Theresa J. Pulley Radwan, What Happens When a Wetland Mitigation Bank Goes Bankrupt, 35 Envtl. L. Reporter 10590 (2005)Clicking on the button will copy the full recommended citation.
The article addresses how bankruptcy law can affect the rights and obligations of mitigation bankers and government agencies. The article further examines two ongoing bankruptcy actions involving mitigation banks and offers suggestions for adoption by regulatory agencies to protect against the consequences of mitigation banks going bankrupt.
Advancing Environmental Education through Moot Court Article
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Recommended Citation
Royal C. Gardner and Darby Dickerson, Advancing Environmental Education through Moot Court, 1 International Journal of Environmental Consumerism 63 (2005)Clicking on the button will copy the full recommended citation.
At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process Article
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Recommended Citation
D. Benjamin Barros, At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 Alb. L. Rev. 343 (2005)Clicking on the button will copy the full recommended citation.
This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court's recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.
The Role of Wetland Mitigation and Conservation Banking in Sustainable Development: The United States Experience Article
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Recommended Citation
Royal C. Gardner, The Role of Wetland Mitigation and Conservation Banking in Sustainable Development: The United States Experience, 1 Forum of Public Policy 47 (2005)Clicking on the button will copy the full recommended citation.