The Indiana Law Journal & The Indiana Law Journal Supplement - Articles - Volume 82, Issue 4

Law & Politics: The Case Against Judicial Review of Direct Democracy

no@spam.com (Corey A. Johanningmeier) — Sat, 06 Oct 2007 22:32:27 EDT

This Note argues against strong judicial review of direct democracy. Judicial review has been the dominant answer in legal scholarship for the perceived danger of majoritarian tyranny in any democratic system. But Progressive movements throughout American history, as well as a growing number of respected law professors, have questioned the assumption that courts or even legislatures are better protectors of discrete and insular minorities than the rights-respecting populace. Although the vast majority of legal scholarship still displays a crippling cynicism about popular competence, this view cannot continue to block progressives from participating in initiative campaigns. Exclusive resort to elitist procedural mechanisms begs the question of populism and drives a wedge between law and the people it seeks to protect. The only way forward for progressive agendas is to engage directly with direct democracy, fighting inevitable bad results at their source, rather than merely trying to circumvent the results with appeals to undemocratic courts.

The Alien Tort Claims Act in 2007: Resolving the Delicate Balance Between Judicial and Legislative Authority

no@spam.com (Hannah R. Bornstein) — Sat, 06 Oct 2007 22:29:05 EDT

Part I of this Note presents the evolution of cases interpreting the ATCA. The evolution of case law shows how, beginning with Filartiga and ending with Sosa, ATCA case law has departed from the original intent of the statute. Part II addresses the separation-of-powers argument and argues that post-Sosa, absent congressional action to effectively amend or repeal the ATCA, federal courts are not violating the separation-of-powers principle by determining what acts violate customary international law under the ATCA. Part III then examines the standard of corporate liability a federal court should establish in the event that Congress fails to amend or repeal the ATCA. Because courts and commentators continue to look to the Ninth Circuit's decision in Unocal, this Note examines the ambiguities the Ninth Circuit created in Unocal. This Note then argues that the standard set by the Ninth Circuit is incorrect, and recommends the standards federal courts should apply in the future, absent congressional action to amend or repeal the ATCA. Part IV then recommends the amendments Congress should make to the ATCA. Congress must specify which acts will create liability under the ATCA not only because such action will end the separation-of-powers debate, but also because it will confer democratic legitimacy upon the idea that if corporations commit grave breaches of international law, they can and will be held accountable.

Toward a History of Children as Witnesses

no@spam.com (David S. Tanenhaus & William Bush) — Sat, 06 Oct 2007 22:22:24 EDT

Professors David Tanenhaus and William Bush provide a fascinating and vital historical overview of children on the witness stand. Their brief essay, Toward a History of Children as Witnesses, presents an invaluable summary of attitudes toward children in general, and child witnesses in particular. Their overview aptly argues for recognizing nuance and multiple threads, rather than searching for one fixed and certain historical truth about child witnesses. Placing the issue of children in a larger historical and philosophical context, their essay also debunks false assumptions about the nature of children's rights and conceptions of childhood as linear or progressing to more responsibility, freedom, and autonomy.

The History of Children’s Hearsay: From Old Bailey to Post-Davis

no@spam.com (Thomas D. Lyon & Raymond LaMagna) — Sat, 06 Oct 2007 22:16:18 EDT

Focusing on a specific period in English history, Professor Thomas Lyon and Raymond Lamagna analyze in detail the historical record of the hearsay use of child witness statements in rape cases heard in the Old Bailey from 1684 to 1789. Their purpose is to illuminate and provide context for The King v. Brasier, a case cited by Davis v. Washington, a confrontation case decided a year after Crawford. Davis cited Brasier as historical support for the proposition that a hearsay declarant's statements made after the emergency has passed are inadmissible. The Supreme Court used Brasier to shore up the distinction between nontestimonial requests for help that need not be subject to cross-examination, and post-incident testimonial statements that trigger the right of confrontation.

Comments on Child Abuse Litigation in a “Testimonial” World: The Intersection of Competency, Hearsay, and Confrontation

no@spam.com (Myrna S. Raeder) — Sat, 06 Oct 2007 22:04:05 EDT

In Comments on Child Abuse Litigation in a "Testimonial" World: The Intersection of Competency, Hearsay, and Confrontation, Raeder summarizes the challenges creates by child witnesses and critiques the historical approach, noting that "[i]t should come as no surprise that eighteenth-century values would silence the voices of children in the twenty-first-century courtroom." She argues that the Supreme Court's rigid and categorical testimonial approach hampers both the accused (who seemingly has no remaining constitutional challenge for nontestimonial statements) and the prosecution (which is sometimes unable to produce a child witness and must therefore forfeit use of a child's testimonial statement).

Kids Say the Darnedest Things: The Prosecutorial Use of Hearsay Statements by Children

no@spam.com (Tom Lininger) — Sat, 06 Oct 2007 21:56:37 EDT

In Kids Say the Darnedest Things: The Prosecutorial Use of Hearsay Statements by Children, Lininger distills and addresses three vital issues: (1) how courts can define whether statements by children are testimonial, (2) what accommodations could make the experience of being a child witness less traumatic, and (3) how forfeiture should be defined in the context of children.

Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them”

no@spam.com (Robert P. Mosteller) — Sat, 06 Oct 2007 21:50:32 EDT

The pattern that has emerged from cases involving children is one largely of
continuity in admitting statements received under Roberts—except as to statements from children to police officers and those closely analogous—where exclusion under Crawford and Davis is now relatively uniform. The most significant development in analysis in recent cases is the focus on the purpose of the questioner, which in many situations simply provides a clearer explanation for an unchanged result.

Statements for medical purposes are universally received. This result is buttressed by Davis’s questioner-purpose analysis. However, the nontestimonial treatment, while generally appropriate even for statements of identity during the initial medical assessment, should not, despite a medical label, continue for subsequent examinations where the prosecutorial purpose likely predominates.

Children as Witnesses: A Symposium on Child Competence and the Accused’s Right to Confront Child Witnesses

no@spam.com (Aviva A. Orenstein) — Fri, 05 Oct 2007 23:44:42 EDT

Although problems concerning witnesses are always interesting and important—raising issues of competence, hearsay, impeachment, and expertise—such issues become even more difficult in criminal cases, where we must incorporate the accused's Sixth Amendment right to confrontation. As applied to children, with their still-developing cognitive abilities, immaturity, susceptibility to influence, and need for protection, such questions about witnesses are particularly acute.

The scholars in this symposium address these questions from different angles, bringing to bear history, psychology, and a careful analysis of the recent Supreme Court cases on confrontation. They address five important themes: (1) the special status and rights of children as witnesses; (2) ways in which the special case of child witnesses illuminates contradictions, ambiguities, unresolved questions, and the unfortunate tendency towards all-or-nothing thinking in recent Supreme Court Sixth Amendment jurisprudence; (3) practical suggestions for balancing the interests of child witnesses and the rights of the accused in criminal cases; (4) an inquiry into the fate of pre-Crawford cases, most importantly Maryland v. Craig; and (5) a critique of the uses and abuses of historical research by the Supreme Court in its attempt to address issues of confrontation.

The papers in this symposium were originally prepared for the Section on Evidence of the 2007 Annual Meeting of the Association of American Law Schools.

The International Enclosure Movement

no@spam.com (Peter K. Yu) — Fri, 05 Oct 2007 23:31:11 EDT

Professor Yu's article takes access to medicine in developing countries as its central example to describe how U.S./E.U./W.T.O. treaty requirements—specifically, that developing countries adopt a westernized/modern IP law regime—restricts those countries in their responses to internal health emergencies. The piece suggests that countries should be given policy space to adopt things like compulsory licenses that would keep the prices of drugs down while still respecting multinational pharmaceutical companies' intellectual property rights. The author is a leading scholar in International IP law, and is currently writing a casebook based on the same research that led to this Article.

Crafting Military Commissions Post-Hamdan: The Military Commissions Act of 2006

no@spam.com (Douglas A. Hass) — Thu, 06 Sep 2007 13:15:27 EDT

In June 2006, the Supreme Court invalidated President Bush’s military commission rules in Hamdan v. Rumsfeld. The Court held that the military commissions fell outside of the military court system established by Congress, and ruled the commissions unconstitutional as applied to both citizens and non-citizens. Congress responded with the Military Commissions Act of 2006 (“the Act”), new legislation to establish military commissions. The Act fails to balance properly the Court’s fairness requirements with the extraordinary demands placed on the laws of war by terrorism.

This Note summarizes whether terrorist attacks implicate the laws of war, what protections are due parties detained in the War on Terror, and concludes that only the laws applicable to non-international armed conflicts govern Al Qaeda’s attacks. After examining Justice Kennedy’s safe harbor in his Hamdan concurrence, the Note considers the procedures of the Military Commissions Act of 2006. In light of the Court’s decision in Hamdan, as well as the provisions of the Geneva Conventions that it incorporates, the Military Commissions Act fails to uphold the fairness standards expressed by the Court. The Act would require significant revisions before it could withstand constitutional scrutiny, even in wartime.