While the unreliability of forensic evidence is becoming increasingly well known, the courts are still reluctant to apply a strict admissibility standard, particularly against government forensic evidence. Even the National Research Council’s groundbreaking report in 2009 has not changed the courts’ practices. This article finds that the status quo is problematic, because without strict review from the courts, the forensics community will not embrace genuine scientific standards. To resolve this problem, this article argues an asymmetry admissibility standard that is relaxed for defense. This asymmetric standard first levels the playing field, because the current admissibility standard favors the State. In addition, counter-intuitively, this new standard would ultimately help strengthen the government’s forensic evidence, which make this proposal more acceptable. This article also presents legal grounds to support the asymmetrical standard and provides specific examples of how the standard would be applied. Considering the continued resistance before and after the report, this proposal would be a practical method to strengthen forensic evidence.
{"title":"The Need for a Lenient Admissibility Standard for Defense Forensic Evidence","authors":"Myeonki Kim","doi":"10.2139/SSRN.3476466","DOIUrl":"https://doi.org/10.2139/SSRN.3476466","url":null,"abstract":"While the unreliability of forensic evidence is becoming increasingly well known, the courts are still reluctant to apply a strict admissibility standard, particularly against government forensic evidence. Even the National Research Council’s groundbreaking report in 2009 has not changed the courts’ practices. This article finds that the status quo is problematic, because without strict review from the courts, the forensics community will not embrace genuine scientific standards. To resolve this problem, this article argues an asymmetry admissibility standard that is relaxed for defense. This asymmetric standard first levels the playing field, because the current admissibility standard favors the State. In addition, counter-intuitively, this new standard would ultimately help strengthen the government’s forensic evidence, which make this proposal more acceptable. This article also presents legal grounds to support the asymmetrical standard and provides specific examples of how the standard would be applied. Considering the continued resistance before and after the report, this proposal would be a practical method to strengthen forensic evidence.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47307362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law-school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last 25 years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: The ‘skeptics’ are too focused on the rational force offered by the deductive syllogism when they should attend to the kinds of arguments that can provide premises for deduction—exactly the work that legal analogy does. Meanwhile, the ‘mystics’ expect us to accept legal analogy without an account of how to discipline it. Using the argumentation schemes and critical questions of informal logic, this article constructs a theory grounded in philosophy but kitted out for action. Not skeptic or mystic, it is dynamic.
{"title":"Law’s Enterprise: Argumentation Schemes & Legal Analogy","authors":"Brian N. Larson","doi":"10.2139/SSRN.3205907","DOIUrl":"https://doi.org/10.2139/SSRN.3205907","url":null,"abstract":"Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law-school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last 25 years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: The ‘skeptics’ are too focused on the rational force offered by the deductive syllogism when they should attend to the kinds of arguments that can provide premises for deduction—exactly the work that legal analogy does. Meanwhile, the ‘mystics’ expect us to accept legal analogy without an account of how to discipline it. Using the argumentation schemes and critical questions of informal logic, this article constructs a theory grounded in philosophy but kitted out for action. Not skeptic or mystic, it is dynamic.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44879231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article focuses attention on state civil rights remedies that provide a civil cause of action against those who commit acts of gender-based violence and frame the harm as a violation of the survivor’s civil rights. Though many of these laws long have been on the books, they are not widely used. The #MeToo movement has rightly focused public attention on the ways gender violence persists, and on the gaps in legal remedies for survivors. At the same time that law and policy-makers work to enact new laws to fill gaps, existing laws should be invoked to promote accountability and provide redress for survivors. State civil rights remedies do just that. In 1994, after four years of hearings, Congress enacted a civil rights remedy as part of the Violence Against Women Act (VAWA) (“VAWA Civil Rights Remedy”), which provided a private right of action against an individual who committed an act of gender violence. The law was modeled after other federal civil rights legislation and authorized a survivor of gender-motivated violence to bring a civil cause of action against the individual who committed the harm. The Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down the federal law as an unconstitutional exercise of Congress’ Commerce Clause powers and of Congress’ enforcement powers under the Fourteenth Amendment. While the law provided redress for survivors during the six years it was in effect, both pre-existing and later-enacted state and local remedies also provide a private right of action for gender violence as a civil rights violation. This article reviews those state statutes and the associated case law interpreting them. It demonstrates that those state laws can more widely be used by those who seek to hold those who commit acts of gender violence accountable. In the wake of the #MeToo movement, when high-profile and high-net-worth individuals are being held to account, and when reports of sexual violence that occur outside traditional employment settings are capturing public attention, those laws may be of increased utility. Trends in employment in which fewer workers are employed in settings covered by traditional federal and state anti-discrimination laws expose the gaps in existing civil rights frameworks and render additional remedies all the more important. The state laws reviewed here have not been the focus of much advocacy, scholarship, or litigation. This article advances an additional and under-utilized theory of recovery for gender violence survivors that offers a useful tool for accountability, redress and equality.
{"title":"State Civil Rights Remedies for Gender Violence: a Tool for Accountability","authors":"Julie Goldscheid, Rene Kathawala","doi":"10.2139/SSRN.3145123","DOIUrl":"https://doi.org/10.2139/SSRN.3145123","url":null,"abstract":"This article focuses attention on state civil rights remedies that provide a civil cause of action against those who commit acts of gender-based violence and frame the harm as a violation of the survivor’s civil rights. Though many of these laws long have been on the books, they are not widely used. The #MeToo movement has rightly focused public attention on the ways gender violence persists, and on the gaps in legal remedies for survivors. At the same time that law and policy-makers work to enact new laws to fill gaps, existing laws should be invoked to promote accountability and provide redress for survivors. State civil rights remedies do just that. \u0000In 1994, after four years of hearings, Congress enacted a civil rights remedy as part of the Violence Against Women Act (VAWA) (“VAWA Civil Rights Remedy”), which provided a private right of action against an individual who committed an act of gender violence. The law was modeled after other federal civil rights legislation and authorized a survivor of gender-motivated violence to bring a civil cause of action against the individual who committed the harm. The Supreme Court, in United States v. Morrison, 529 U.S. 598 (2000), struck down the federal law as an unconstitutional exercise of Congress’ Commerce Clause powers and of Congress’ enforcement powers under the Fourteenth Amendment. While the law provided redress for survivors during the six years it was in effect, both pre-existing and later-enacted state and local remedies also provide a private right of action for gender violence as a civil rights violation. This article reviews those state statutes and the associated case law interpreting them. It demonstrates that those state laws can more widely be used by those who seek to hold those who commit acts of gender violence accountable. In the wake of the #MeToo movement, when high-profile and high-net-worth individuals are being held to account, and when reports of sexual violence that occur outside traditional employment settings are capturing public attention, those laws may be of increased utility. Trends in employment in which fewer workers are employed in settings covered by traditional federal and state anti-discrimination laws expose the gaps in existing civil rights frameworks and render additional remedies all the more important. The state laws reviewed here have not been the focus of much advocacy, scholarship, or litigation. This article advances an additional and under-utilized theory of recovery for gender violence survivors that offers a useful tool for accountability, redress and equality.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46116276","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Political Discrimination by Private Employers","authors":"R. Wright","doi":"10.2139/ssrn.3271984","DOIUrl":"https://doi.org/10.2139/ssrn.3271984","url":null,"abstract":"","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68580812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article compares the approaches to benefit corporation legislation, particularly the Model Legislation proposed by B Lab, on the one hand, and the Delaware and Colorado laws, on the other.
本文比较了两种有利于公司立法的途径，特别是B实验室提出的示范立法，以及特拉华州和科罗拉多州的法律。
{"title":"Benefit Corporation Law","authors":"Mark J. Loewenstein","doi":"10.2139/SSRN.2840003","DOIUrl":"https://doi.org/10.2139/SSRN.2840003","url":null,"abstract":"This article compares the approaches to benefit corporation legislation, particularly the Model Legislation proposed by B Lab, on the one hand, and the Delaware and Colorado laws, on the other.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2016-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68377182","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores the differences between vertical and horizontal federalism. Vertical federalism is so familiar that we can recite the reasons to value states’ role in our federal system as easily as children recite the alphabet. The law of horizontal federalism, in contrast, has mostly developed within its doctrinal silos - the Dormant Commerce Clause, personal jurisdiction, the Full Faith and Credit Clause.This papers makes two points. First, it’s both strange and instructive that the two halves of “Our Federalism” have developed so differently given that they are both preoccupied with the same problem: what happens when one government invades another’s turf? Vertical federalism offers a single narrative for adjudicating federal-state relations. We ask the same question in every case - how should we think of federal-state relations writ large? - and unsurprisingly gets the same answer in every case. Horizontal federalism, meanwhile, resolves state-federal tussles issue by issue, problem by problem, domain by domain. Rather than focusing on a single big question - how should we think of state-state relations writ large? - it emphasizes context and facts on the ground and a myriad of doctrinal questions writ small. It thus lacks what vertical federalism theory has long provided: a broad-gauged account of how our governing institutions ought to interact. Second, if we’re going to build an overarching narrative for horizontal federalism, it shouldn’t be the story scholars have offered thus far. The moral of that story is that no one should be forced to live under someone else’s law. But that tale is premised on an outdated attachment to state sovereignty and an unrealistic impulse to tamp down on state spillovers. The paper thus sketches an alternative, democratically inflected account that we should deploy going forward.
{"title":"The Taft Lecture: Living Under Someone Else's Law","authors":"H. Gerken","doi":"10.2139/ssrn.2822404","DOIUrl":"https://doi.org/10.2139/ssrn.2822404","url":null,"abstract":"This paper explores the differences between vertical and horizontal federalism. Vertical federalism is so familiar that we can recite the reasons to value states’ role in our federal system as easily as children recite the alphabet. The law of horizontal federalism, in contrast, has mostly developed within its doctrinal silos - the Dormant Commerce Clause, personal jurisdiction, the Full Faith and Credit Clause.This papers makes two points. First, it’s both strange and instructive that the two halves of “Our Federalism” have developed so differently given that they are both preoccupied with the same problem: what happens when one government invades another’s turf? Vertical federalism offers a single narrative for adjudicating federal-state relations. We ask the same question in every case - how should we think of federal-state relations writ large? - and unsurprisingly gets the same answer in every case. Horizontal federalism, meanwhile, resolves state-federal tussles issue by issue, problem by problem, domain by domain. Rather than focusing on a single big question - how should we think of state-state relations writ large? - it emphasizes context and facts on the ground and a myriad of doctrinal questions writ small. It thus lacks what vertical federalism theory has long provided: a broad-gauged account of how our governing institutions ought to interact. Second, if we’re going to build an overarching narrative for horizontal federalism, it shouldn’t be the story scholars have offered thus far. The moral of that story is that no one should be forced to live under someone else’s law. But that tale is premised on an outdated attachment to state sovereignty and an unrealistic impulse to tamp down on state spillovers. The paper thus sketches an alternative, democratically inflected account that we should deploy going forward.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2016-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68355829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The standard practice in many mega-Chapter 11 cases is to repay secured lenders at the outset of the case with the caveat that, if the repayment was inappropriate, the secured lenders will disgorge the payments. In the General Motors Chapter 11 case, a syndicate of lenders, mostly CLOs and various funds, were paid $1.5 billion at the outset of the case, even though their key financing statement had been accidentally terminated and thus they had no right to be paid. For almost seven years, the General Motors bankruptcy estate has been attempting -- at great cost -- to recover the money, and it seems unlikely that a material amount of the money will be recovered. This article explains why certain of the Federal Rules of Bankruptcy Procedure need to be amended to prevent similar problems in the future.
{"title":"The $1.5 Billion General Motors Recalls at the Dangerous Intersection of Chapter 11, Article 9, and TARP","authors":"S. Henry","doi":"10.2139/ssrn.2755003","DOIUrl":"https://doi.org/10.2139/ssrn.2755003","url":null,"abstract":"The standard practice in many mega-Chapter 11 cases is to repay secured lenders at the outset of the case with the caveat that, if the repayment was inappropriate, the secured lenders will disgorge the payments. In the General Motors Chapter 11 case, a syndicate of lenders, mostly CLOs and various funds, were paid $1.5 billion at the outset of the case, even though their key financing statement had been accidentally terminated and thus they had no right to be paid. For almost seven years, the General Motors bankruptcy estate has been attempting -- at great cost -- to recover the money, and it seems unlikely that a material amount of the money will be recovered. This article explains why certain of the Federal Rules of Bankruptcy Procedure need to be amended to prevent similar problems in the future.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2016-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68291218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In a society where behavior is significantly influenced through private ordering, the example of others is meaningful. Actions, whatever they manifest on the part of the actor, serve to inform and direct observers. Furthermore, the intent of actors is difficult to assess. These observations are only more true in the context of financial instrument trading, which is largely determined through complex, anonymous algorithms and serves to guide actors far beyond the market participants responding to orders to buy or sell. The potential for misdirection through entering and then cancelling orders has been recognized by the Dodd Frank Act, which imposes penalties on traders that place an order with intent to cancel it (or "spoofers"). Fictive order flow can endanger markets and manipulate prices due to the modesty of traders observing distorted order volumes. Modesty in today's electronically driven financial markets is both a virtue and a vice. Modesty is both a means for impounding dispersed information and the source of distortion and manipulation.Policing order cancellations properly recognizes the potential for traders to over-react to changes in manifest supply and demand for a financial product and the public good nature of price information. The post-Dodd-Frank regime, however, is grossly inadequate. Punishing only intentional order cancellations is both under- and over-inclusive. Un-intended order cancellations are not simply likely, but represent the great majority of orders in status quo market dynamics. And un-intended order cancellations pollute the price signal no less than premeditated cancellations. On the over-inclusive side, consistent rates of bid- and offer-cancellations are predictable and thus should not significantly distort prices. Thus steady rates of order cancellation should not be penalized, even if intentional. Furthermore, the pre-requisite of intent results in regressive enforcement, high enforcement costs, and gross under-enforcement. Finally, the regulatory regime (and the literature) neglect the costs of artificial silence and focus only on excessive noise. Nothing is being done to deter excessive dearths of orders.This article explains how these flaws of the initial thrust to recognize the social costs of fictive orders should be addressed through a tax that ratchets super-linearly with a trader's net number of bid or offer cancellations. An intent-agnostic tax on excessive cancellations would avoid the over- and under-inclusion of the present regime as well as its expense and regressive consequences. Proceeds from the tax can be used to subsidize orders when market participants temporarily withdraw from trading.
在一个行为受到私人秩序显著影响的社会中，他人的榜样是有意义的。行为，无论表现在行为者身上，都是用来通知和指导观察者的。此外，行为者的意图很难评估。这些观察结果在金融工具交易的背景下更为真实，金融工具交易在很大程度上是通过复杂的匿名算法决定的，并用于指导远远超出市场参与者对买入或卖出指令做出反应的参与者。《多德-弗兰克法案》(Dodd Frank Act)已经认识到，通过下达订单然后取消订单来误导客户的可能性，该法案对有意取消订单的交易员(或“欺骗者”)施加了惩罚。虚假的订单流可能危及市场并操纵价格，因为交易员会谨慎地观察扭曲的订单量。在当今电子驱动的金融市场中，谦虚既是一种美德，也是一种恶习。谦虚既是收集分散信息的手段，也是歪曲和操纵的来源。对订单取消的监管适当地认识到，交易者可能对金融产品的明显供求变化反应过度，以及价格信息的公共品性质。然而，后多德-弗兰克(dodd - frank)体制严重不足。只惩罚有意取消订单的行为既不够包容，也过于包容。意外的订单取消不仅仅是可能的，而是代表了当前市场动态中的绝大多数订单。非有意取消订单对价格信号的污染不亚于有意取消订单。在过于包容的方面，一致的出价和要约取消率是可预测的，因此不应显著扭曲价格。因此，稳定的订单取消率不应该受到惩罚，即使是故意的。此外，意图的先决条件导致了执行的倒退，执行成本高，执行不足。最后，监管制度(和文献)忽视了人为沉默的成本，而只关注过度的噪音。没有采取任何措施来阻止订单的过度短缺。这篇文章解释了如何通过一种与交易者的买盘或卖盘取消净数量呈超线性增长的税收来解决这些最初试图承认有效订单的社会成本的缺陷。对过度取消税收的意图不可知税将避免当前制度的过度和不足，以及其费用和递减后果。当市场参与者暂时退出交易时，税收所得可用于补贴订单。
{"title":"Taxing Fictive Orders: How an Information Forcing Tax Can Reduce Manipulation and Distortion in Financial Product Markets","authors":"I. Beylin","doi":"10.2139/SSRN.2814700","DOIUrl":"https://doi.org/10.2139/SSRN.2814700","url":null,"abstract":"In a society where behavior is significantly influenced through private ordering, the example of others is meaningful. Actions, whatever they manifest on the part of the actor, serve to inform and direct observers. Furthermore, the intent of actors is difficult to assess. These observations are only more true in the context of financial instrument trading, which is largely determined through complex, anonymous algorithms and serves to guide actors far beyond the market participants responding to orders to buy or sell. The potential for misdirection through entering and then cancelling orders has been recognized by the Dodd Frank Act, which imposes penalties on traders that place an order with intent to cancel it (or \"spoofers\"). Fictive order flow can endanger markets and manipulate prices due to the modesty of traders observing distorted order volumes. Modesty in today's electronically driven financial markets is both a virtue and a vice. Modesty is both a means for impounding dispersed information and the source of distortion and manipulation.Policing order cancellations properly recognizes the potential for traders to over-react to changes in manifest supply and demand for a financial product and the public good nature of price information. The post-Dodd-Frank regime, however, is grossly inadequate. Punishing only intentional order cancellations is both under- and over-inclusive. Un-intended order cancellations are not simply likely, but represent the great majority of orders in status quo market dynamics. And un-intended order cancellations pollute the price signal no less than premeditated cancellations. On the over-inclusive side, consistent rates of bid- and offer-cancellations are predictable and thus should not significantly distort prices. Thus steady rates of order cancellation should not be penalized, even if intentional. Furthermore, the pre-requisite of intent results in regressive enforcement, high enforcement costs, and gross under-enforcement. Finally, the regulatory regime (and the literature) neglect the costs of artificial silence and focus only on excessive noise. Nothing is being done to deter excessive dearths of orders.This article explains how these flaws of the initial thrust to recognize the social costs of fictive orders should be addressed through a tax that ratchets super-linearly with a trader's net number of bid or offer cancellations. An intent-agnostic tax on excessive cancellations would avoid the over- and under-inclusion of the present regime as well as its expense and regressive consequences. Proceeds from the tax can be used to subsidize orders when market participants temporarily withdraw from trading.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2015-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68346023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On January 20, 2015, the United States Supreme Court ruled that the Arkansas Department of Correction’s grooming policy restricting a Muslim inmate from growing a half-inch beard violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The majority decision in Holt v. Hobbs, delivered by Justice Alito, held that the prison’s restriction substantially burdened Abdul Maalik Muhammad’s right to practice his faith – Islam. For Muslim men like Abdul Maalik Muhammad, donning a beard demonstrates piety, and emulation of Islam’s final and foremost messenger, Mohammed.Holt came before the Supreme Court during a moment of rising scholarly interest in the Muslim prison population. The War on Terror has converted American prisons into battlegrounds, pitting prison officials against “radical Islam.” In addition to fear of prisoner radicalization, the Nation of Islam (NOI), an African-American Muslim movement conceived in Detroit in 1930, is still strongly represented in American prisons. Scholars have not only paid little attention to the experience of NOI Muslim inmates, but also, segregated this narrative from the modern legal discourse about Muslim inmates have in the War on Terror era. The decision in Holt provides the ideal juncture to integrate the modern experience of Muslim prisoners with the pioneering strides brought forth by NOI Muslim inmates. This Article highlights the legal challenges and strategies used by incarcerated followers of the NOI and the victories earned: first, gaining judicial recognition of Islam as a religion prison authorities must accommodate; second, establishing that prisoners had standing to sue in federal court under the Civil Rights Act of 1871; and third, netting a range of fundamental religious accommodations that were not peculiar to the NOI, but amenable to Muslims across sectarian lines. Through an analysis of this litigation, this Article also examines the judicial construction of the NOI’s legal identity, impacted heavily by popular representations and misrepresentations of the movement that spiked in the late 1950’s – decades before the recent Holt decision.
2015年1月20日，美国最高法院裁定，阿肯色州惩教局限制穆斯林囚犯留半英寸胡子的政策违反了《宗教土地使用和机构人员法》。在霍尔特诉霍布斯案中，由阿利托大法官作出的多数派裁决认为，监狱的限制实质上损害了穆罕默德践行其信仰伊斯兰教的权利。对于像阿卜杜勒·马力克·穆罕默德这样的穆斯林男子来说，留胡子是虔诚的表现，是对伊斯兰教最后也是最重要的使者穆罕默德的效仿。霍尔特在最高法院出庭时，正值学术界对穆斯林监狱人口的兴趣日益浓厚。反恐战争把美国的监狱变成了战场，让监狱官员与“激进的伊斯兰教”展开斗争。除了担心囚犯激进化之外，1930年在底特律发起的非裔美国穆斯林运动“伊斯兰民族”(Nation of Islam, NOI)在美国监狱中仍有大量代表。学者们不仅很少关注NOI穆斯林囚犯的经历，而且将这种叙述与反恐战争时期关于穆斯林囚犯的现代法律话语隔离开来。霍尔特的决定提供了一个理想的结合点，将穆斯林囚犯的现代经验与NOI穆斯林囚犯带来的开创性进步结合起来。本文重点介绍了被监禁的NOI追随者所面临的法律挑战和使用的策略，以及所取得的胜利:首先，获得了伊斯兰教作为监狱当局必须容纳的宗教的司法承认;第二，根据1871年《民权法案》，确立囚犯有权在联邦法院提起诉讼;第三，制定了一系列基本的宗教安排，这些安排不是NOI所特有的，而是对跨越宗派界限的穆斯林都适用的。通过对这一诉讼的分析，本文还考察了NOI法律身份的司法建构，该身份在20世纪50年代末(最近的霍尔特判决之前的几十年)受到大众陈述和对该运动的误读的严重影响。
{"title":"Islam Incarcerated: Religious Accommodation of Muslim Prisoners Before Holt v. Hobbs","authors":"K. Beydoun","doi":"10.2139/SSRN.2561845","DOIUrl":"https://doi.org/10.2139/SSRN.2561845","url":null,"abstract":"On January 20, 2015, the United States Supreme Court ruled that the Arkansas Department of Correction’s grooming policy restricting a Muslim inmate from growing a half-inch beard violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The majority decision in Holt v. Hobbs, delivered by Justice Alito, held that the prison’s restriction substantially burdened Abdul Maalik Muhammad’s right to practice his faith – Islam. For Muslim men like Abdul Maalik Muhammad, donning a beard demonstrates piety, and emulation of Islam’s final and foremost messenger, Mohammed.Holt came before the Supreme Court during a moment of rising scholarly interest in the Muslim prison population. The War on Terror has converted American prisons into battlegrounds, pitting prison officials against “radical Islam.” In addition to fear of prisoner radicalization, the Nation of Islam (NOI), an African-American Muslim movement conceived in Detroit in 1930, is still strongly represented in American prisons. Scholars have not only paid little attention to the experience of NOI Muslim inmates, but also, segregated this narrative from the modern legal discourse about Muslim inmates have in the War on Terror era. The decision in Holt provides the ideal juncture to integrate the modern experience of Muslim prisoners with the pioneering strides brought forth by NOI Muslim inmates. This Article highlights the legal challenges and strategies used by incarcerated followers of the NOI and the victories earned: first, gaining judicial recognition of Islam as a religion prison authorities must accommodate; second, establishing that prisoners had standing to sue in federal court under the Civil Rights Act of 1871; and third, netting a range of fundamental religious accommodations that were not peculiar to the NOI, but amenable to Muslims across sectarian lines. Through an analysis of this litigation, this Article also examines the judicial construction of the NOI’s legal identity, impacted heavily by popular representations and misrepresentations of the movement that spiked in the late 1950’s – decades before the recent Holt decision.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2015-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2561845","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68204560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The determinations made at an international extradition hearing cannot be appealed and may only be reviewed through habeas corpus. As the case law stands now, habeas courts reviewing extradition decisions are prevented from considering de novo the evidence presented at the extradition hearing, and petitioners are disallowed from introducing evidence to the habeas court. Instead, the factual determinations of the extradition magistrate are reviewed through habeas for “clear error” or through other low level standards of review. The courts support these procedures on authority from the late nineteenth and early twentieth centuries, a time when the scope of habeas corpus was mostly limited to issues of jurisdiction. I argue that the nature of habeas corpus as an original and independent civil procedure requires that petitioners be allowed to introduce evidence, and demands that habeas courts review de novo the determinations of probable cause by extradition magistrates, rather than through low level standards of review such as “clear error,” or “competent evidence.” These arguments are grounded on three main legal bases: (1) the Court’s opinion in Boumediene v. Bush, which concludes that habeas protection must be greater when the petitioner receives little process in the previous proceeding; (2) the provisions in 28 U.S.C. § 2243 that habeas courts must hear and determine the facts anew; and (3) the long history of fact finding by habeas courts when reviewing cases of executive detention and detention without trial.
{"title":"The Consideration of Factual Issues in Extradition Habeas","authors":"Artemio Rivera","doi":"10.2139/ssrn.2666263","DOIUrl":"https://doi.org/10.2139/ssrn.2666263","url":null,"abstract":"The determinations made at an international extradition hearing cannot be appealed and may only be reviewed through habeas corpus. As the case law stands now, habeas courts reviewing extradition decisions are prevented from considering de novo the evidence presented at the extradition hearing, and petitioners are disallowed from introducing evidence to the habeas court. Instead, the factual determinations of the extradition magistrate are reviewed through habeas for “clear error” or through other low level standards of review. The courts support these procedures on authority from the late nineteenth and early twentieth centuries, a time when the scope of habeas corpus was mostly limited to issues of jurisdiction. I argue that the nature of habeas corpus as an original and independent civil procedure requires that petitioners be allowed to introduce evidence, and demands that habeas courts review de novo the determinations of probable cause by extradition magistrates, rather than through low level standards of review such as “clear error,” or “competent evidence.” These arguments are grounded on three main legal bases: (1) the Court’s opinion in Boumediene v. Bush, which concludes that habeas protection must be greater when the petitioner receives little process in the previous proceeding; (2) the provisions in 28 U.S.C. § 2243 that habeas courts must hear and determine the facts anew; and (3) the long history of fact finding by habeas courts when reviewing cases of executive detention and detention without trial.","PeriodicalId":45537,"journal":{"name":"University of Cincinnati Law Review","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.2666263","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68246095","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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