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,,,Kansas Standard Asset Seizure and Forfeiture Act: An Anciet and Failing Approach ,,,堪萨斯标准资产扣押和没收法案:一种古老而失败的方法
Pub Date : 2018-05-01 DOI: 10.17161/1808.26576
A. Selph
A “D-” is not the grade anyone wishes to receive; yet, it is the grade that the Institute for Justice1 (“IJ”) awarded Kansas for its civil asset forfeiture statutes.2 In a national survey of forfeiture approaches, the IJ assigned each jurisdiction an overall system grade based on the jurisdiction’s individual grades in three categories: “the financial incentive for law enforcement to seize, the government’s standard of proof to forfeit, and who bears the burden in innocent owner claims.”3 If Kansas’ low grade does not demonstrate that there are problems with Kansas’ civil forfeiture system, consider the American Civil Liberties Union’s (“ACLU”) determination that the Kansas civil asset forfeiture laws are “among the worst in the nation.”4 Kansas’ civil forfeiture laws are known collectively as the Kansas Standard Asset Seizure and Forfeiture Act (“KSASFA”).5 Kansas’ forfeiture problems begin with its use of a civil forfeiture approach. Civil asset forfeiture is a civil action in which the government pursues forfeiture, of real or personal property, based on the fictional idea that the property itself committed a wrong.6 Civil forfeiture actions proceed
“D-”不是任何人都希望得到的分数;然而,这是司法研究所1(“IJ”)授予堪萨斯州民事资产没收法规的等级。2在一项关于没收方法的全国调查中,司法部根据司法管辖区的个人等级,将每个司法管辖区划分为三类:“执法部门没收财产的经济激励、政府没收财产的证明标准以及谁承担无辜所有者索赔的责任。”3如果堪萨斯州的低等级不能证明堪萨斯州的民事没收制度存在问题,考虑美国公民自由联盟(“ACLU”)认定堪萨斯州的民事资产没收法是“全国最差的”。4堪萨斯州的民用资产没收法统称为《堪萨斯州标准资产扣押和没收法》(“KSASFA”)。5堪萨斯州的没收问题始于其使用的民事没收方法。民事资产没收是一种民事诉讼,政府根据财产本身犯下错误的虚构想法,对不动产或个人财产进行没收
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引用次数: 0
,,,The Kansas Offender Registration Act: Where's the Constitutional Limit? ,,,《堪萨斯州罪犯登记法》:宪法限制在哪里?
Pub Date : 2018-05-01 DOI: 10.17161/1808.26580
Lindsay Strong
Joe, the defendant in this hypothetical case, was charged with aggravated burglary, aggravated robbery, theft, and criminal possession of a firearm. These charges stemmed from his involvement in a forcible entry into an apartment. As Joe entered into the apartment, he demanded money from its occupants. While demanding money, Joe was holding what was described as a “skinny weapon” that had a pistol grip in the front and rear. When the police finally arrived on the scene, however, no weapon was found. Nor was any weapon found when Joe was later apprehended. Joe plead guilty to a charge of aggravated burglary and a reduced charge of robbery at his plea hearing. In exchange to pleading these counts, the State agreed to drop the other charges against Joe. Notably, none of the charges Joe pleaded to alleged he used a “deadly weapon” during the commission of those crimes. The district court accepted Joe’s pleas, but also made a finding that a firearm was used in the commission of the crime. If Joe were a resident of a state such as Alaska, he would most likely be sentenced to serve concurrent sentences. These sentences would roughly amount to a little under five years of incarceration. Joe’s sentence would be unaffected by the judge’s finding of Joe being in possession of a firearm because doing so would violate Joe’s Apprendi rights.2
乔,这个假想案件的被告,被指控犯有严重入室盗窃,严重抢劫,盗窃和非法持有枪支罪。这些指控源于他参与强行进入一所公寓。当乔走进公寓时,他向住户要钱。而要求钱,乔拿着什么被描述为“瘦武器”,有一个手枪握在前面和后面。然而,当警察最终到达现场时,并没有发现任何武器。乔后来被捕时也没有发现任何武器。在辩诉听证会上,乔对一项加重入室盗窃的指控和一项减轻的抢劫指控表示认罪。作为认罪的交换,控方同意撤销对乔的其他指控。值得注意的是,乔所承认的指控中没有一项指控他在犯罪过程中使用了“致命武器”。地区法院接受了乔的请求,但也发现在犯罪过程中使用了枪支。如果乔是阿拉斯加等州的居民,他很可能会被判同时服刑。这些判决大致相当于不到5年的监禁。如果法官认定乔拥有枪支,对乔的判决将不受影响,因为这样做会侵犯乔的学徒权利
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引用次数: 0
,,,The Roof is on Fire: Dangers to the Volunteer Emergency Services After Mendel v. City of Gibraltar ,,,屋顶着火了:孟德尔诉直布罗陀市案后志愿者应急服务面临的危险
Pub Date : 2018-05-01 DOI: 10.17161/1808.26581
Joe Uhlman
The idea of the emergency responder is deeply rooted in American culture.2 As shown in the prevalence of emergency responders in popular culture, the American cultural consciousness of emergency responders runs so deep that it has been called a modern re-cast of a classical archetype, typifying the “American Hero.”3 But what is not well known is that just over 800,000 (70%) of the more than 1.1 million firefighters4 and 49% of the 826,111 credentialed emergency medical responders at the EMT-Basic level are volunteers.5 These volunteers are critical to our communities. However, recent court decisions threaten the stability of the volunteer fire departments that they work for. In Mendel v. City of Gibraltar, the Sixth Circuit Court of Appeals held that because volunteer firefighters were paid an
应急人员的概念深深植根于美国文化。2正如流行文化中应急人员的普遍性所表明的那样,美国应急人员的文化意识根深蒂固,被称为经典原型的现代翻版,代表着“美国英雄”。“3但不为人所知的是,在110多万消防员中,有80多万人(70%)是志愿者4,在826111名EMT基层认证的紧急医疗响应人员中,有49%是志愿者。5这些志愿者对我们的社区至关重要。然而,最近的法院判决威胁到了他们工作的志愿消防部门的稳定。在Mendel诉直布罗陀市一案中,第六巡回上诉法院认为,由于志愿消防员的工资为
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引用次数: 0
,,,The Mature Minor Doctrine: Can Minors Unilaterally Refuse Medical Treatment? 未成年人成熟主义:未成年人可以单方面拒绝医疗吗?
Pub Date : 2018-05-01 DOI: 10.17161/1808.26574
M. Hayes
In 1960, the Journal of the American Medical Association published an article describing a surprisingly simple and remarkably effective lifesaving technique.1 The technique, now known as cardiopulmonary resuscitation (CPR), enabled medical professionals to “restor[e] spontaneous circulation” to patients suffering from cardiac arrest.2 Once administration of CPR became standard procedure, however, medical professionals recognized that it may not always be in a patient’s interest to attempt resuscitation.3 Rather, resuscitating a terminal patient already near death may cause the patient to endure a painful last few days of life. Recognizing this, doctors and nurses looked for a way to curb the unnecessary “suffering inflicted on many terminally ill patients by repeated resuscitation attempts that only prolonged death.”4 Hospital staffs adopted “procedures to delay or deny resuscitation attempts in situations in which they believed CPR would not be beneficial.”5 Doctors designated certain patients for “less-than-full” resuscitation attempts; word of mouth or symbols on a patient’s chart
1960年,《美国医学协会杂志》发表了一篇文章,描述了一种非常简单而又非常有效的救生技术这项技术,现在被称为心肺复苏术(CPR),使医疗专业人员能够“恢复心脏骤停患者的自然循环”然而,一旦实施心肺复苏术成为标准程序,医疗专业人员就认识到尝试复苏并不总是符合病人的利益相反,救活一个濒临死亡的临终病人可能会使病人忍受生命最后几天的痛苦。认识到这一点后,医生和护士们开始寻找一种方法,以减少对许多绝症患者造成的不必要的“痛苦”,因为反复的复苏尝试只会延长死亡时间。4 .医院工作人员采用了“在他们认为心肺复苏术无益的情况下延迟或拒绝复苏尝试的程序”。医生指定某些病人进行“不完全”的复苏尝试;口口相传或者病人病历上的符号
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引用次数: 1
,,,Searching for Clarity Amid Confustion: An Examination of the Standards for Determining Waiver and Revival of the Right to Arbitrate 在混乱中寻找清晰:放弃与恢复仲裁权的认定标准考察
Pub Date : 2018-01-01 DOI: 10.17161/1808.27485
J. Lewis, Dustin M. Dow
A hallmark of the American precedent-based legal system is consistency. From jurisdiction to jurisdiction, state court to federal court, legal doctrines built upon the foundation of historic precedent are generally applied with uniform—or at least recognizably similar—rules and guidelines, leading to predictable results.1 That is, unless the subject is waiver of arbitration rights. Under what circumstances does a party involved in litigation waive the right to enforce a valid arbitration agreement? Why does it—or should it—matter if the plaintiff asserts class-action claims? And what may prompt a court to revive previously waived arbitral rights? Those three questions at the heart of this article are seemingly straightforward. But the answers to them are anything but. In the United States, arbitration is increasingly used to resolve disputes in many diverse areas, including those involving consumer, commercial, anti-trust, securities, foreign investments and employment law.2 This
美国以判例为基础的法律体系的一个特点是一致性。从一个司法管辖区到另一个司法管辖区,从州法院到联邦法院,建立在历史先例基础上的法律理论通常以统一的——或者至少是公认的相似的——规则和指导方针适用,从而导致可预见的结果也就是说,除非标的是放弃仲裁权。在什么情况下,诉讼当事人放弃执行有效仲裁协议的权利?如果原告提出集体诉讼索赔,为什么它或它应该重要?什么可能促使法院恢复先前放弃的仲裁权利?这篇文章的核心问题似乎很简单。但这些问题的答案绝非如此。在美国,仲裁越来越多地用于解决许多不同领域的争议,包括涉及消费者、商业、反垄断、证券、外国投资和就业法的争议这
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引用次数: 0
,,,Coasean Blackmail: Protection Markets and Protection Rackets 科斯勒索:保护市场和保护诈骗
Pub Date : 2018-01-01 DOI: 10.17161/1808.27484
Sidney W. DeLong
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引用次数: 1
,,,May the Factors Be Ever in Your Favor: How Murr v. Wisconsin Sows Confusion in the Regulatory Taking Fields 愿因素永远对你有利:穆尔诉威斯康辛州如何在监管领域制造混乱
Pub Date : 2018-01-01 DOI: 10.17161/1808.27487
Ryan J. Ott
“[M]ay the odds be ever in your favor!”1 That phrase from the cultural phenomenon The Hunger Games might soon come from the mouths of court clerks before every regulatory takings case. Historically, the law surrounding regulatory takings has been muddled.2 But the Supreme Court confused the field further when it decided Murr v. Wisconsin on June 23, 2017.3 This Note analyzes the Supreme Court’s decision and the potential consequences it holds for private property owners. Ladies and gentlemen, welcome to the Supreme Court’s brand-new Takings Game.4 May the factors be ever in your favor.5 Regulatory takings claims are governed by the Fifth Amendment’s Taking Clause, which states that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.”6 Murr presented the Court with the challenge of determining whether a regulatory taking occurred when the boundaries of the relevant parcel were still in dispute.7
“愿机会永远对你有利!”这句话来自文化现象《饥饿游戏》(the Hunger Games),可能很快就会出现在每一起监管征收案件之前的法庭书吏口中。从历史上看,有关监管征收的法律一直是混乱的但最高法院在2017年6月23日对穆尔诉威斯康辛州一案做出裁决时,进一步混淆了这一领域。本文分析了最高法院的裁决及其对私有财产所有者的潜在影响。女士们,先生们,欢迎来到最高法院全新的“没收游戏”监管征用索赔受第五修正案征用条款管辖,该条款规定“任何人不得……未经正当法律程序而被剥夺生命、自由或财产的穆尔向法院提出了一个挑战,即确定在有关地块的边界仍有争议时是否发生了管制性征用
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引用次数: 0
,,,An Unknown 1859 Notaries' Ledger from Douglas County, Kansas 堪萨斯州道格拉斯县一份不知名的1859年公证人账簿
Pub Date : 2018-01-01 DOI: 10.17161/1808.26572
M. Hoeflich
One of the advantages of being a legal historian is the need and pleasure to search out documents relevant to one’s research no matter where they may be. During my early career, when I focused on the history of Roman and medieval legal history, these searches took place primarily in museums and archives, often in rather wonderful places such as Paris, Rome, and the Vatican. When I began teaching law in the U.S. and researching American legal history at the University of Illinois College of Law, I found myself visiting obscure small towns in central and southern Illinois searching out letters and documents for the Lincoln Legal Papers Project. When I moved to the University of Kansas School of Law in 1994, I decided to begin to research Kansas legal history. Over the past two decades this research has led to a number of published papers as well as a book on the history of the Federal District Court in Kansas.2 Over the years that I have been doing research on Kansas legal history, I have not only scoured all of the available libraries and archives in the state relevant to the subject, but I have also made it a habit to attend estate auctions and book sales which might contain relevant unknown materials. I have had a number of successes in these outings, including the discovery of a one volume diary kept by Kansas Supreme Court Justice Daniel Mulford Valentine3 which contained the only known contemporary manuscript account of Abraham Lincoln’s visit to and speech at Leavenworth, Kansas in 1859.
作为一名法律历史学家的好处之一是,无论在哪里,都需要并乐于搜索与自己研究相关的文件。在我早期的职业生涯中,当我专注于罗马历史和中世纪法律史时,这些搜索主要发生在博物馆和档案馆,通常是在巴黎、罗马和梵蒂冈等相当棒的地方。当我开始在美国伊利诺伊大学法学院教授法律并研究美国法律史时,我发现自己经常去伊利诺斯州中部和南部一些不起眼的小镇,为林肯法律文件项目(Lincoln legal Papers Project)寻找信件和文件。1994年,当我搬到堪萨斯大学法学院时,我决定开始研究堪萨斯的法律史。在过去的二十年里,这项研究已经导致了发表论文的数量以及一本书在联邦地区法院的历史Kansas.2多年来,我一直在做研究堪萨斯法律史,我不仅搜遍了所有可用的图书馆和档案馆在相关主题,但我也有一个习惯参加房地产拍卖和销售这本书可能包含有关未知材料。我在这些旅行中取得了一些成功,包括发现了一本由堪萨斯州最高法院法官丹尼尔·马尔福德·瓦伦蒂诺保存的一卷日记,其中包含了1859年亚伯拉罕·林肯访问堪萨斯州莱文沃思并发表演讲的唯一已知的当代手稿。
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引用次数: 0
,,,Consent Cannot Control: Peretz v. United States and Federal Magistrate Judge Jurisdiction in Felony Cases 同意不能控制:Peretz诉美国和联邦地方法官在重罪案件中的管辖权
Pub Date : 2018-01-01 DOI: 10.17161/1808.27480
K. Fields
In Peretz v. United States, a bare majority of the Supreme Court held that the “additional duties” clause of the Federal Magistrates Act permits a magistrate judge—with a defendant’s consent—to preside over voir dire at a felony trial. The majority also did not perceive any constitutional danger arising from the exercise of the “judicial Power of the United States” by an Article I officer. At first glance, the result appears to be a common-sense victory for efficiency, and the vast majority of citations to Peretz do not involve reflection upon proper statutory interpretation, structural analysis, or the significance of certain judicial functions. Rather, Peretz has been cited ad nauseum for the
在Peretz诉美国一案中,最高法院的绝大多数法官认为,联邦地方法官法案的“附加职责”条款允许地方法官在被告同意的情况下主持重罪审判的口头审查。多数人也不认为宪法第一条规定的官员行使“合众国司法权”会产生任何宪法危险。乍一看,结果似乎是效率的常识性胜利,对佩雷茨的绝大多数引用都没有涉及对适当的法律解释、结构分析或某些司法职能的意义的反思。相反,佩雷兹一直被引为令人厌恶的
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引用次数: 0
,,,Initial Coin Offerings as Investment Contracts: Are Blockchain Utility Tokens Securities? 作为投资合同的首次代币发行:区块链实用型代币是证券吗?
Pub Date : 2018-01-01 DOI: 10.17161/1808.27486
Nate Crosser
Current American jurisprudence on digital assets (e.g. Bitcoin) is woefully underdeveloped due to the rapid development and adoption of blockchain technology—creating an intellectual gold rush with agencies, attorneys, and techies all shouting their positions (on securities laws, particularly) into the wind. This Comment enters the ether in an endeavor to counter prevailing federal agency narratives about the role of securities laws regarding “ICOs”—introducing the reader to the most pertinent features of blockchain technology and Initial Coin Offerings, introducing the U.S. Securities and Exchange Commission’s (the “SEC”) current regulatory approach, and applying the seminal Howey is-it-a-security test. Initial Coin Offerings (ICOs) are the online sale of cryptographic assets used to launch a cryptocurrency, finance a blockchain application development project, or sell access to features of a blockchain application.1 ICOs, also called Token Sales or Token Generation Events, are financing mechanisms popularly viewed as a hybrid of a Wall Street Initial Public Offering of Stock (IPO),2 venture capital,3 and crowdfunding (like Kickstarter).4 ICOs can be used to facilitate a broad range of
由于区块链技术的快速发展和采用,目前美国关于数字资产(例如比特币)的法理严重不发达,这导致了一场知识淘金热,机构、律师和技术人员都在大声宣扬自己的立场(特别是在证券法方面)。本评论旨在反驳联邦机构对“ico”证券法作用的主流叙述,向读者介绍区块链技术和首次代币发行的最相关特征,介绍美国证券交易委员会(“SEC”)当前的监管方法,并应用开创性的Howey is-it-a-security测试。首次代币发行(ico)是在线销售加密资产,用于启动加密货币,为区块链应用程序开发项目提供资金,或出售区块链应用程序功能的访问权限ico,也被称为代币销售或代币生成事件,是一种融资机制,通常被视为华尔街首次公开发行股票(IPO)、风险投资、众筹(如Kickstarter)的混合体ico可用于促进广泛的
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引用次数: 8
期刊
University of Kansas law review. University of Kansas. School of Law
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