Archive for the 'New L&C Law Scholarship' Category
November 10th, 2009
The latest issue of Lewis & Clark Law School’s Animal Law is now out.
Here are the articles published in Volume 15, Issue 2 of Animal Law, complete with links to the abstracts:
Introduction
Essay
Articles
New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.
November 10th, 2009
Jonathan R. Lovvorn & Nancy V. Perry, California Proposition 2: A Watershed Moment For Animal Law, 15 Animal Law 149 (2009)
This essay explores the legislative and legal campaign to enact California Proposition 2: The Prevention of Farm Animal Cruelty Act, approved by California voters on November 5, 2008. The authors direct the legislative and litigation programs for The Humane Society of the United States, and, along with many other individuals and organizations, were centrally involved in the drafting, campaigning, and litigation efforts in support of the measure.
(abstract from Animal Law)
November 10th, 2009
Marianne Dellinger, Using Dogs For Emotional Support of Testifying Victims of Crime, 15 Animal Law 171 (2009)
Courts and prosecutorial offices around the nation have started using service dogs to support emotionally frail child witnesses who are unwilling to testify but for the calming presence of a dog. Proponents claim that this new type of therapeutic jurisprudence helps bring criminal defendants to justice in cases where the testimony of the complaining witness is crucial to the prosecution’s case. Opponents fear the infringement of the defendants’ rights to a fair trial because of the dogs’ potential to prejudice a jury to come out in favor of the witnesses.
This article analyzes the legal foundations supporting the use of service dogs for emotional support of complaining witnesses in open court. Currently, the Federal Rules of Evidence give trial judges wide discretion to allow evidence presentation methods deemed effective for the ascertainment of the truth. Other federal law allows child witnesses to give testimony with the emotional support of an adult attendant or through alternative methods such as closed-circuit television or recorded statements. However, a defendant’s Sixth Amendment confrontation rights may be held violated by such alternative methods, especially after the recent landmark case Crawford v. Washington. In contrast, this is less likely to be the case if a witness gives live testimony, even with the potentially prejudicial presence of a service dog. Case precedent demonstrates that defendants’ right to a fair trial and the protection of the confrontation right have been upheld in similar cases where minor witnesses used comfort objects for support.
The article concludes that legally sound reasons exist for allowing the use of service dogs in court, but only in cases where the witness can demonstrate a truly compelling need for the emotional support and only where the proper balancing with defendant?s rights is performed.
(abstract from Animal Law)
November 10th, 2009
Edward A. Fitzgerald, The Alaskan Wolf War: The Public Trust Doctrine Missing In Action, 15 Animal Law 193 (2009)
Wolf killing in Alaska is authorized by the Board of Game (BOG), which is an agency captured by hunting and trapping interests. The BOG’s wolf killing policies have generally been supported by state legislatures and governors. Alaskan courts have not halted the wolf killing. The courts have viewed wolf killing as an issue of administrative law and deferred to BOG expertise. This article argues that the courts should have invoked Alaska’s public trust doctrine, which prevents the granting of preferences over state natural resources. The courts should have also rigorously examined the BOG’s wolf killing policies and protected the wolf as a valuable public trust resource. The BOG’s wolf killing policies have not been supported by the public, which resorted to ballot initiatives to protect the wolf. Congress is currently considering the Protect America’s Wildlife Act, which will prevent the same day airborne hunting of Alaska’s wolves.
(abstract from Animal Law)
November 10th, 2009
Marla K. Conley, Caring for Dolphins, Otters, and Octopuses: Speciesism in the Regulations of Zoos and Aquariums, 15 Animal Law 237 (2009)
Current regulations for zoos and aquariums rely heavily on standards established by industry associations, and the government increasingly expects public display facilities to self-monitor. Unfortunately, the industry associations charged with policing zoos and aquariums lack the enforcement authority necessary to ensure that animals kept in these facilities receive adequate attention or resources. This article argues that marine animals kept in public display facilities, such as zoos and aquariums, should benefit from the same level of regulatory protection as their land-bound counterparts. Even though marine animals demonstrate intellectual abilities equivalent or superior to those of land-bound animals, federal regulations allow facilities to keep marine animals in smaller enclosures with less social contact. This article discusses existing regulations for the following three levels of animals in light of their physical and intellectual needs: dolphins as compared to elephants and nonhuman primates, otters as compared to dogs, and octopuses as compared to hamsters and rabbits. Finally, this article recommends several adjustments to existing regulations for marine animals.
(abstract from Animal Law)
October 8th, 2009
The latest issue of Lewis & Clark Law School’s Lewis & Clark Law Review is now out.
Here are the articles published in Volume 13, Number 3 of Lewis & Clark Law Review, complete with links to the abstracts and full-text articles:
Symposium Articles
Notes & Comments
New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.
October 8th, 2009
James F. Flanagan, We Have A “Purpose” Requirement If We Can Keep It, 13 Lewis & Clark Law Review 553 (2009)
The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the “purpose” requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by longstanding precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is narrow, other victim hearsay often is available, and prosecutors have proven “purpose” for decades. Nevertheless, the purpose requirement of Giles, and ultimately Crawford’s protection of the Confrontation Clause, will be undermined unless the courts require strict “but for” proof of the reason for the witness’s absence, including proof that the witness did not have independent personal reasons for avoiding testifying. The government’s good faith obligation to produce witnesses must be strengthened to avoid making forfeiture so easy that there is a perverse incentive to rely on it, rather than diligently seeking and producing witnesses. The author concludes by identifying the problems in using expert testimony to infer causation only from a prior history of domestic discord.
(abstract from Lewis & Clark Law Review)
October 8th, 2009
Robert Kry, Forfeiture and Cross-Examination, 13 Lewis & Clark Law Review 577 (2009)
The forfeiture exception to the confrontation right allows the admission of a witness’s prior testimony where the defendant wrongfully procures the witness’s absence from trial. But did the common-law forfeiture exception justify admitting any statements previously made by the witness? Or did it justify admitting only the witness’s prior cross-examined testimony (thus denying the defendant only the opportunity to cross-examine the witness at trial )? Although not the principal issue decided by the Supreme Court in Giles v. California, this question spawned a lively debate, with the majority taking the former view and the dissent the latter. I argue that, although some evidence supports the majority’s position, other evidence supports the narrower view that forfeiture justified admitting only a witness’s prior cross-examined testimony. I nonetheless argue that the dissent drew the wrong conclusion from that history. Forfeiture’s arguable status as a narrow exception for prior crossexamined testimony was a further reason to reject the California Supreme Court’s extension of the doctrine in Giles.
(abstract from Lewis & Clark Law Review)
October 8th, 2009
Thomas Y. Davies, Selective Originalism: Sorting Out Which Aspects of Giles’s Forfeiture Exception To Confrontation Were or Were Not “Established at the Time of the Founding” , 13 Lewis & Clark Law Review 605 (2009)
In Giles v. California (2008), as previously in Crawford v. Washington (2004), Justice Scalia’s majority opinion purported to follow the Framers’ design for the Confrontation Clause. Giles did comport with the framing-era right insofar as it limited the forfeiture exception to confrontation to instances in which a criminal defendant had engaged in deliberate witness-tampering (although the opinions in Giles endorsed a loose notion of deliberateness). However, a review of the history of the confrontation right and forfeiture reveals that Giles departed from the common-law right in fundamental ways. In framing-era law, forfeiture applied only to the sworn testimony that a witness who was kept away from trial by the defendant had previously given under the Marian statutes. Moreover, only the sworn and confronted prior testimony of an unavailable witness was admissible under forfeiture during the nineteenth century and most of the twentieth century. Unsworn and unconfronted hearsay statements of the sort at issue in Giles were never admissible under forfeiture until the latter part of the twentieth century-and then were allowed under the reliability formulation of confrontation that Crawford rejected as a totally inadequate formulation of the right. Thus, a genuine originalist analysis would have undermined the constitutionality of current Federal Rule of Evidence 804(b)(6).
Additionally, all of the opinions in Giles persisted in endorsing Crawford’s completely fictional claim that the original confrontation right regulated only “testimonial” hearsay, but did not apply at all to “nontestimonial” hearsay-notwithstanding that Justice Scalia made several assertions in Giles that undercut that pretended distinction. For example, he acknowledged that the general ban against hearsay arose from the same roots as the confrontation right itself. Nevertheless, dicta in Giles indicates that the justices intend to narrowly confine “testimonial” hearsay, and thus the confrontation right itself, to only those hearsay statements made to government officers, but to exempt all other hearsay as “nontestimonial,” including even statements made to physicians or nurses involved in gathering evidence for domestic violence prosecutions. In sum, the purported originalism in Giles was so selective it did not amount to originalism at all.
(abstract from Lewis & Clark Law Review)
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