© 2019 by Everyday Evidence

Daniel@everydayevidence.og

  • LinkedIn Social Icon
  • Twitter Social Icon
  • Facebook Social Icon

Current Issue

Summer/Fall 2019 | Vol. 1, Issue 2

Article

Misusing the Presumption Against Extraterritoriality in Climate Change Litigation

by Professor William S. Dodge, UC Davis School of Law

1 Cts. & Just. L.J. 118 (2019)

Climate change is one of the most important issues of our times. Like other important issues, it has found its way into the courts of the United States. Among the most promising climate change cases are state-law tort claims filed by cities against major oil companies. These suits do not seek to enjoin the production of fossil fuels but simply seek compensation for the costs that the cities are having to bear in order to protect against climate change. In other words, these suits seek to internalize the costs of producing fossil fuels from which the companies have profited. Two such cases—City of New York v. BP P.L.C. and City of Oakland v. BP P.L.C.—are currently on appeal before the Second and Ninth Circuits.

/ Summer 2019 / C&JLJ                                                                            

Featured Article

The Unavoidably Empirical Fourth Amendment: A Case Study of Kansas v. Glover

by Andrew M. Crespo, Harvard Law School

1 Cts. & Just. L.J. 217 (2019)

  • Twitter

On April 28, 2016, Sheriff’s Deputy Mark Mehrer pulled over a pickup truck based on a single known fact: the truck was registered to an unlicensed driver. The State of Kansas prosecuted the truck’s driver, Mr. Charles Glover, for operating the vehicle with a revoked license. Mr. Glover, in turn, filed a motion to suppress, in which he alleged that the stop itself was unconstitutional and that all of the ensuing fruits — including the officer’s observation of Mr. Glover sitting behind the wheel — should thus be excluded from evidence under the Fourth Amendment.

/ Fall 2019 / C&JLJ                                                                                      

Article

The Constitution Abroad: A Structural Analysis

by Alan Mygatt-Tauber

1 Cts. & Just. L.J. 127 (2019)

  • Twitter

One of the most perplexing questions facing courts today has to do with the extraterritorial reach of the US Constitution. Criminal statutes have been extended beyond US borders and questions of the rights of aliens both abroad and at home have been taking up more and more of the courts’ time. In the last two terms, the Supreme Court has been asked to address what rights apply to a Mexican citizen shot in Mexico by a US Customs agent standing in the United States, as well as whether the First Amendment prevents the President from discriminating against aliens based on their religion. At the core of both of these cases is a fundamental question as to whether these aliens have the right to ask for the protections of our Constitution that Americans take for granted. The Court has managed to avoid grappling with either of these questions, finding other ways to resolve these cases.

/ Fall 2019 / C&JLJ                                                                                      

Article

Article

Article

Does a Trial Penalty Exist in a Criminal Justice System that Provides a Right to Jury Sentencing?

by Kate Doyle Feingold, JD  and Amy Dezember, George Mason University 

1 Cts. & Just. L.J. 168 (2019)

Interplay of the Fourth Amendment in Implied Con-sent Statutes and Warrantless Chemical Testing in Impaired Driving Cases

by the Honorable Mary A. Celeste and Tandis Taghavi

1 Cts. & Just. L.J. 200 (2019)

Sentencing research largely supports the notion that defendants who plead guilty receive substantially shorter sentences than observably equivalent people who were convicted at trial, indicating that defendants receive a discount for accepting a plea offer from the prosecution. This is called the trial penalty. The current study investigates whether a trial penalty exists in the Marine Corps justice system, a jurisdiction that offers jury sentencing in criminal cases. Using Marine Corps courts-martial data from 2012-2015, the study finds no trial penalty effect and finds that juries are less likely to impose severe types of punishment as compared to judges. Jury sentencing may have the potential to reduce the impact of the trial penalty. The paper discusses implications for public policy, theory and future research.

/ Fall 2019 / C&JLJ                                                                                      

What Law Must Lawyers Know?

by Joan Howarth, Michigan State University College of Law

19 Conn. Pub. Int. L.J. __ (2020) (forthcoming)

1 Cts. & Just. L.J. __ (2019)

This article is forthcoming in the Connecticut Public Interest Law Journal.  Thank you to CPILJ for allowing us to share this article.

What constitutes the body of legal knowledge that every lawyer must possess? I used to know, or think I did, but no longer. I suspect no one else knows either. This difficult question is not just an intriguing theoretical matter but also an urgent, practical problem. Licensing regulators assume that minimal competence in any profession requires certain fundamental knowledge, skills and abilities.  Bar examiners must determine what knowledge, skills, and abilities are necessary for minimum competence as an attorney and then design tests and other requirements to attempt to align licensure with minimum competence.  Today’s tangled attorney licensing puzzles cannot be solved without better answers to this foundational question: what law must every lawyer know?

/ Summer 2019 / C&JLJ                                                                            

As with the changes in impaired driving laws comes too changes in Fourth Amendment issues in impaired driving cases. Implied consent statutes and warrantless chemical testing are prevalent themes in impaired driving cases. They are intricately intertwined with both being creatures of statute and both implicating the Fourth Amendment. Within the last several years, there have been major U.S. Supreme Court rulings and state appellate cases addressing Fourth Amendment issues in impaired driving cases. Law enforcement, attorneys and the courts are continually faced with these Fourth Amendment search and seizure issues. This article will explore the current status of those cases and discuss the interplay between implied consent statutes and warrantless chemical testing as they relate to Fourth Amendment search and seizure in impaired driving cases.

/ Fall 2019 / C&JLJ                                                                                               

Spring 2019 | Vol. 1, Issue 1

Featured Article

The Irrelevance of Jurisdict-ionality in Fort Bend County v. Davis

by Professor Scott Dodson, UC Hastings College of the Law

1 Cts. & Just. L.J. 16 (2019)

  • Twitter

For the last fifteen years or so, the Supreme Court has fixated on questions involving the characterization of rules and statutes as “jurisdictional.” The quest began in Steel Co. v. Citizens for a Better Environment, when the Court noted that jurisdiction “is a word of many, too many, meanings.” Subsequent opinions have brought new attention and thinking to questions of jurisdiction. The Court’s focus has undoubtedly had a salutary effect, especially in erecting a clearer framework for deciding such jurisdictional-characterization questions.

This laser-like focus on jurisdictionality, however, has had the unfortunate, ancillary effect of distracting from important questions about the particular effects of a rule or statute. In some cases, the question of effects is actually the real question of relevance to the case, while the jurisdictional-characterization question fades to irrelevancy. A recent case, Fort Bend County v. Davis, illustrates why.  

/ Spring 2019 / C&JLJ                                                                                 

Article

Article

Yale Law School Commencement Address Class of 2019

by Neal K. Katyal, Partner, Hogan Lovells; Former Acting Solicitor General; Saunders Professor Georgetown Law

1 Cts. & Just. L.J. 101 (2019)

  • Twitter

Last year, my friend Justice Goodwin Liu stood before the class of 2018. His brilliant speech had 21 footnotes. Now, this isn’t gonna be that kind of speech.  I’m going to speak personally, because every day since I received the call from Dean Gerken inviting me to do this, I’ve woken up thinking about it, wondering what to say to you, having improbably received this gift of a chance.  

I had hoped to be light today, because that’s part of what the day calls for. But I lost a dear friend and my right-hand Supreme Court researcher 3 months ago, a young man named David Whipple. David was whom I hired when Zoe Jacoby, of your graduating class, left my side to attend school here. As you all know, it’s darn hard to replace Zoe. But David did.  And while working with me, he was admitted to the YLS class of 2022 — which means, 3 years from now, he was supposed to be sitting where you are. But he was killed in a car accident. And that got me thinking: If you want humor, you’ve got late-night T.V. — and you can always make fun of Harvard Law kids. 

/ Spring 2019 / C&JLJ                                                                                 

Editor

Article

How Brown v. Board of Education Actually Ended: The Forgotten Final Chapter of the Twentieth Century’s Most Famous Case

by Peter Beck, Yale Law School 2019

1 Cts. & Just. L.J. 78 (2019)

While everyone knows the story of Brown v. Board of Education in 1954 and 1955, few people realize that the litigation actually lasted until 1999. Not related or follow-up cases—the “Case of the Century” itself was on the Kansas District Court’s docket until the very end of that century. Plaintiffs who began as Topeka schoolchildren in the early years of the Brown litigation ended up as parents of Topeka schoolchildren in the same case’s later stages. Given the endless and deserved amount of focus Brown has received, the near-complete lack of attention on the last four decades of the case is remarkable. The long history of Brown—again, the case itself, not just its legacy—traces the entire path of segregation, desegregation, and resegregation in modern American public schools. Most scholarship on Brown focuses on its first five years; this Article focuses on its next four decades. Through unpublished court records and overlooked decisions, this Article answers a question we have remarkably forgotten to ask: how did the Supreme Court’s most famous case actually end? What does the half-century struggle to integrate Topeka’s schools tell us about desegregation litigation and equal protection in American schools?

/ Spring 2019 / C&JLJ ______________________________

Genetic Standing: The Constitutionality of Familial DNA Searching on Genea-logical Research Databases

by Emily M. Strak, Regent University School of Law 2020

1 Cts. & Just. L.J. 44 (2019)

Student Article

In Carpenter v. United States, the United States Supreme Court recognized that the nation’s cell phone service accounts exceed its population. Comparably, the consumer market for genetic testing is climbing rapidly. In 2017, the most popular direct-to-consumer genetic testing company, Ancestry.com, completed genetic testing on four million people. The second most popular company, 23andMe, held a spot on Amazon’s list of top sellers on Black Friday Weekend for 2017. Whether seeking ancestral origins, uncovering genetic health risks, or determining the likelihood of growing a unibrow, more than fifteen million consumers have submitted some form of their deoxyribonucleic acid (DNA) to a direct-to-consumer genetic testing company. Upon receiving their results, consumers then may download their “lab-generated information of a DNA sample,” also called raw DNA data. Once downloaded, consumers may upload their raw DNA data to a third-party website to conduct independent genealogy and ancestry research.

/ Spring 2019 / C&JLJ ______________________________

Police Force Organ to Support the ICC’s Judg-ments and Arrest Warrants: A Proposition to Amend Article 86 of the Rome Statute

by Humoud Y. Alfadhli, Emory University School of Law SJD/PhD 2021

1 Cts. & Just. L.J. 23 (2019)

  • Twitter

Omar Al Bashir became president of Sudan in 1989. His time in office was marked by various crimes, such as war crimes and crimes against humanity. Because of his conduct while in office, president Al Bashir was indicted by the International Criminal Court for committing war crimes and crimes against humanity on March, 2009. The Court issued an arrest warrant to bring him and prosecute him before the Court. The Statute of Rome established the ICC. Article 86 of the Rome Statute requires all signatories to cooperate with the ICC by complying with the courts’ orders including arresting those sought by a warrant. In 2010, Omar Al Bashir visited the Republic of Chad, a signatory of the Rome Statute, but was not arrested. In 2017, he visited the Kingdom of Saudi Arabia, another signatory of the Rome Statute. Again, nothing happened. The countries in question gave no reasons for not arresting him.

The failed attempts to arrest Omar Al Bashir illustrate the limitations of the International Criminal Court (ICC) in achieving its primary goal. Although the Rome Statute stated that states parties have an obligation to cooperate with the ICC to arrest the international criminals, many states have violated it. Since Mr. Bashir was indicted, many heads of states have failed to comply, and have instead let him enter and depart their countries.

/ Spring 2019 / C&JLJ ______________________________

A Letter from the Editor: When Can a Judge Write?

by Daniel M. Coble, Editor

1 Cts. & Just. L.J. 9 (2019)

  • Twitter

When can a judge write? Better yet, when can a judge not write?  These questions plague the profession with unanswered questions and sought after answers.  Our judicial system looks to judges, not as perfect beings who should remain untouched, but rather as imperfect practitioners who should remain above it all.  This lofty goal is an admirable one and also one that we must continue to seek out.  However, our system also needs our judges to write, speak, and advocate on behalf of our laws.  Judges are in a unique position to know what works, what doesn’t, and what will never.  So then, how does a judge write without violating this sacred trust? Like so many other legal writers have done, I will analogize this situation to the Youngstown Steel case and follow the parameters set by the esteemed Justice Jackson. 

/ Spring 2019 / C&JLJ ______________________________

main-qimg-58b6d90da5d3feeafb33f5c1010614