• Selected
• Entire List

Abstract:
This Article discusses extradition in America. The original authority for interstate extradition is the United States Constitution, which has been effectuated by Congress through federal statute. However, the Uniform Criminal Extradition Act (U.C.E.A.) permits extradition under circumstances and through procedures not articulated in the federal statute. The most recent development in the extradition process is the adoption by the Commissioners on Uniform State Laws of the Uniform Extradition and Rendition Act (U.E.R.A.), designed to replace the U.C.E.A. This Article examines: (1) the current extradition process under the Uniform Criminal Extradition Act (U.C.E.A.), with particular emphasis on the use of discretion and the cognizable issues for judicial resolution prior to transfer of the alleged fugitive; and (2) the fundamental changes of the new U.E.R.A., which is intended to streamline the current extradition process and provide much more detail than the U.C.E.A.

Uniform Criminal Extradition Act, U.C.E.A., Uniform Extradition and Rendition Act, U.E.R.A.

Abstract:
The United States Supreme Court has established a two-part test for determining the constitutional propriety of asserting jurisdiction over a nonresident defendant. The second part of this test requires that the assertion of jurisdiction not offend principles of "fair play and substantial justice." Because the Supreme Court has never clearly defined the scope of "fair play and substantial justice," this Article focuses on federal appellate and trial court opinions for clarification of this standard. The first section of the Article briefly reviews major Supreme Court opinions that have articulated but seldom applied the component parts of the "fair play" standard. The second section defines and describes the five primary parts of the "fair play" standard and how the lower federal courts have applied them.

fair play standard, substantial justice

Abstract:
This Article calls for both the ABA and the states to review their Codes of Judicial Conduct in order to: (1) add ethical duties not currently addressed, such as a black-letter judicial duty to disclose any known disqualifying circumstances to counsel and parties; (2) broaden existing duties like the judge's duty to inform himself or herself about personal and family financial holdings; and (3) consider new disqualifying conditions to reclassify general appearance of partiality situations as specific per se grounds for recusal.

Part I examines the Codes' standards relating to the appearance of impropriety, the accompanying Code commentary, waiver of disqualifying situations, and a comparison with attorneys' ethics rules about the appearance issue. Part II looks at judicial approaches to the appearance of impropriety, including its rationale, judicial disclosure of possible grounds for the existence of a negative appearance, the presumption of impartiality and the reasonable person standard by which appearances are measured, and whether an ethical violation for negative appearances requires a remedy such as a new trial or is merely harmless error. Part III studies the state court case law in nine factual contexts where the appearance of impropriety is often raised and discusses standards and criteria for each that should be added to the ABA Codes and commentary to assist judges, lawyers, and lay members of judicial conduct organizations in evaluating judicial disqualification or discipline.

ethics, standards, code of judicial conduct

Abstract:
This Article addresses the often-criticized and frequently ridiculed practice of stating only one's name and address when called to the witness stand. This practice has its origins in the United States Supreme Court decision of Rogers v. United States, which held that when a witness discloses any incriminating fact he waives the Fifth Amendment privilege as to all details about that fact. This Article explores the rationales underlying Rogers, its practical scope and limitations, and a recently developed alternative test for evaluating whether a witness has waived the Fifth Amendment privilege as a result of prior incriminating statements. It also proposes a test for testimonial waivers that gives effect to the Fifth Amendment privilege and enables witnesses to comprehend the consequences of their actions before incriminating themselves.

Fifth Amendment privilege, self incrimination, Rogers v. United States

Abstract:
This Article discusses the Interstate Agreement on Detainers (IAD), which addresses the problems inmate's face when prosecutor's notify the inmate's penal institution about additional charges, and a "detainer" is placed in the inmate's file. The purpose of the IAD is to provide a comprehensive and coherent solution to the problems that beset the criminal justice system under the old detainer system. The IAD not only provides the inmate with a method of resolving the charges underlying detainers from another jurisdiction, but also provides prosecutors with a method for securing inmates incarcerated in other jurisdictions for trial before the expiration of their sentences. This Article addresses both the operation of the new charge detainer system and the strict construction which judicial decisions have placed on the IAD.

Interstate Agreement on Detainers, IAD, detainer system

Abstract:
This Article discusses entrapment as a defense in criminal prosecution cases. Despite the almost universal recognition of entrapment as a defense, the precise contours of the defense remain unclear. In all of the entrapment cases considered by the Supreme Court, the members of the Court have been divided into factions over the precise basis for the defense, the proper formulation of the test to determine the availability of the defense and whether the issue of entrapment should be one of fact or one of law. This Article first discusses the four Supreme Court entrapment cases and then surveys lower federal court cases to show the evolution of the due process principle.

entrapment, due process principle

Abstract:
This Article discusses the judge's ethical duty to report misconduct by other judges and lawyers and the effect of this duty on judicial independence. It examines the judicial duty to disclose, compares it to a lawyer's ethical duty to disclose, and surveys several issues of interpretation and application of the judicial ethical requirement including when the duty to report arises, what misconduct should or must be reported, and what actions or disciplinary measure are appropriate for the judge to pursue. In addition, it discusses exceptions to the duty to disclose and proposes modification of the existing ethical standard.

ethics, code of judicial conduct

Abstract:
Important provisions of the 2007 American Bar Association Code of Judicial Conduct relate to impermissible conflicts of interest. Two key issues relate to judicial disclosure to the parties about potentially disqualifying conditions, and the type of disqualifying conditions that can lead to the judge's disqualification or the imposition of disciplinary sanctions for the judge's failure to disqualify. For both, the Code standards should provide more guidance to maintain the belief of litigants and the public in the integrity of the judicial system.

American Bar Association Code of Judicial Conduct, judicial disclosure

Abstract:
This Article discusses the judicial ethics of ex parte and other communications and the concerns these communications have generated through their negative effects on the judicial process. Part I examines the Model Code of Judicial Conduct standards relating to ex parte communications, the accompanying Code commentaries, and the purpose for the ethical requirement. Part II looks at which communications are prohibited, such as independent investigations by judges, and also discusses the meaning of the term "on the merits." Part III examines ex parte communications that are actually permitted: requests for help from disinterested experts, communications with other judges and with court personnel, contacts to resolve a case through mediation or settlement, judicial requests for findings of fact and conclusions of law, and ex parte contacts that are authorized by law. Finally, Part IV discusses and compares the ethical standards imposed upon lawyers regarding ex parte communications, raises questions about the consistency between the judicial and lawyers' ethical codes, and includes proposals for improving the ABA Code Judicial Conduct to assist judges, lawyers, and lay members of judicial conduct organizations in evaluating judicial disqualification or discipline.

ethics, communication, code of judicial conduct

Abstract:
This Article discusses judicial impartiality as a significant element of justice. It is well established that judges should decide legal disputes free of any personal bias or prejudice. When a conflict of interest arises a judge may be unable to maintain impartiality and thus should be disqualified from the case. This Article deals with whether, and under what circumstances, a judge must, may, or cannot refer a motion to disqualify to another judge. Contrary to the traditional majority approach which leaves the decision on any motion to the challenged judge, this Article also suggests that the reasons alleged for the conflict of interest should determine the identity of the decision maker.

judicial ethics

Abstract:
This Article discusses a United States Supreme Court case which addressed the authority of the states to tax exports from the United States. Looking at the law at the time the case was decided, there is also a discussion of the implications for the future authority of states to tax in a global economy.

tax, taxation, trade, exports

Abstract:
This Article examines various aspects of the ethical dilemmas judges face when assigned to preside over a case in which a relative is affiliated with counsel or record. It discusses relevant federal and state ethical standards including the appearance of partiality, the relative-lawyer's interest, and the disclosure of the relationship by judge and waiver. It then addresses the application of the standards in case law and other situations through the relative-lawyer's law firm position either as a partner, non-partner, or public attorney. The last part proposes supplemental Code or Commentary language for consideration by state and federal courts and legislatures.

ethics, relationships, relative, counsel

Abstract:
This Article discusses Canon 2 of the Code of Judicial Conduct ("Code"). It focuses on the diverse parts of Canon 2 and the cases in which courts have explicitly applied those standards. Each section compares the language of the 1972 and 1990 Codes, and the extent to which the states have modified the Code's black-letter language or its Commentary. Following the exposition of Code language, the Article discusses and analyzes the judicial decisions that contravene the norm of Canon 2 judicial decision-making.

Canon 2, Code of Judicial Conduct

Abstract:
This Article explores the constitutionality of compulsory retirement laws. There has been much debate about the value of these statutes to society. On one hand, an arbitrary age requiring retirement may begin dependency on society earlier than if no age was set. On the other hand, mandatory retirement statutes assure increased employment and promotion opportunities for younger workers. The Supreme Court has only occasionally concerned itself with classifications by age, and Massachusetts Board of Retirement v. Murgia appears to be the first case which deals with the constitutionality of a maximum age for purposes of retirement. This Article explores the constitutional issues implicated by mandatory retirement schemes, examines some lower court decisions, and analyzes the recent Murgia opinion.

retirement laws, mandatory retirement statutes, Massachusetts Board of Retirement v. Murgia

Abstract:
This Article discusses the essential component of equal justice under the law that a neutral and detached judge preside over court proceedings. Specifically, it examines the statutory grounds for recusal, found at 28 U.S.C. § 455, with a focus on the specific bases for recusal at § 455(b). It discusses the issues of statutory interpretation found in the case law applying § 455(b). It also argues that periodically, it may be appropriate to reexamine the statute for the purpose of (1) adding ethical duties not currently described such as a duty to disclose disqualifying circumstances; (2) broadening preexisting duties such as the judge's duty to inform himself or herself about financial holdings; or (3) adding new disqualifying conditions such as recusals involving former law clerks.

judicial ethics

Abstract:
The Article discusses and applies a methodology for calculating the need for attorneys over a period of time. Among the topics discussed are a ratio of citizens per lawyer, factors affecting that ratio, areas of the state where lawyers go to after law school graduation, and future trends in the justice system and the practice of law that could affect the future need for attorneys. The Article was written initially for the Kentucky Council on Higher Education.

higher education, legal education, employment, recruitment, trends

Abstract:
This Article discusses "administrative convenience" as a justification for state action creating classifications. It examines the role of administrative convenience under the judicially created standards of equal protection review, with particular attention to the administrative conveniences: the saving of money and the most common specific goals of avoidance of difficult fact situations, the prevention of fraudulent claims, the application of laws with uniformity and consistency, and the hiring and placement of employees with uniformity and consistency.

equal protection review, administrative convenience

Abstract:
After the Supreme Court held in 1969 that the Sixth Amendment right to a speedy trial applied to inmates charged with crimes in other jurisdictions, forty-eight states and the federal government quickly became signatories to the Interstate Agreement on Detainers. The states' prompt response signaled the significance of the Court's decision in Smith v. Hooey. Since then, courts have narrowed the availability of the Interstate Agreement, leaving many inmates to live with the uncertainty of pending revocation and other charges judicially excluded from the Agreement's scope.

Sixth Amendment, Interstate Agreement on Detainers, Smith v. Hooey