The Lawyers\u27 Role in Selecting the President: A Complete Legal History of the 2000 Election

This Article presents the factual and legal history of Bush v. Gore, in the detail that is warranted for a case of this magnitude and complexity. Part One sets forth the legal framework within which the case unfolded, acquainting the reader with the breadth of Florida and federal law that governed the controversy. Part Two reviews what happened--the factual and legal developments from the time Gore requested manual counts in four Florida counties through the Supreme Court\u27s decision ending the statewide recount the Florida Supreme Court had ordered--and focuses on the attorneys\u27 arguments at each stage. Part Three then explores how a fuller and more accurate presentation of the applicable law, particularly by Gore\u27s legal team, might have brought the controversy to a different end. With any luck, the partisan outrage will be replaced with responsible analysis, and the profession will be reminded of what trial lawyers both love and fear about their work. In litigated cases, there are usually two closely matched sides, and “justice” frequently turns on which lawyer better handles the case he or she is given

When Should the First Amendment Protect Judges from Their Unethical Speech?

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been. Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, however, if a court finds the discipline in violation of the First Amendment. Many courts have not even recognized this, and others have been confused about the proper First Amendment analysis to apply. Because the ethical code restrictions on speech are content-based, they would ordinarily receive strict scrutiny. But the great harm that judges’ unethical speech can pose warrants granting the state greater discretion in the disciplinary process. Specifically, the free speech rights of judges facing discipline for unethical extrajudicial speech should be subject not to strict scrutiny, but to the doctrine applied to public employees in Pickering v. Board of Education. Under Pickering, extrajudicial speech that does not involve a matter of public concern — such as racist or sexually harassing remarks — would not be protected at all. Extrajudicial speech that does involve a matter of public concern would have the court balance the judge’s interest in speaking against the state’s interest in prohibiting the speech. Additionally, a presumption of validity would accompany any ethical code provision that provided notice to judges in advance specifically what they are not to say and why

The Lawyers\u27 Role in Selecting the President: A Complete Legal History of the 2000 Election

This Article presents the factual and legal history of Bush v. Gore, in the detail that is warranted for a case of this magnitude and complexity. Part One sets forth the legal framework within which the case unfolded, acquainting the reader with the breadth of Florida and federal law that governed the controversy. Part Two reviews what happened--the factual and legal developments from the time Gore requested manual counts in four Florida counties through the Supreme Court\u27s decision ending the statewide recount the Florida Supreme Court had ordered--and focuses on the attorneys\u27 arguments at each stage. Part Three then explores how a fuller and more accurate presentation of the applicable law, particularly by Gore\u27s legal team, might have brought the controversy to a different end. With any luck, the partisan outrage will be replaced with responsible analysis, and the profession will be reminded of what trial lawyers both love and fear about their work. In litigated cases, there are usually two closely matched sides, and “justice” frequently turns on which lawyer better handles the case he or she is given

The Lawyers’ Role in Selecting the President: A Complete Legal History of the 2000 Election

This Article presents the factual and legal history of Bush v. Gore,2 9 in the detail that is warranted for a case of this magnitude and complexity. Part One sets forth the legal framework within which the case unfolded, acquainting the reader with the breadth of Florida and federal law that governed the controversy. Part Two reviews what happened- the factual and legal developments from the time Gore requested manual counts in four Florida counties through the Supreme Court\u27s decision ending the statewide recount the Florida Supreme Court had ordered-and focuses on the attorneys\u27 arguments at each stage. Part Three then explores how a fuller and more accu- rate presentation of the applicable law, particularly by Gore\u27s legal team, might have brought the controversy to a different end. With any luck, the partisan outrage will be replaced with responsible analysis, and the profession will be reminded of what trial lawyers both love and fear about their work. In litigated cases, there are usually two closely matched sides, and justice frequently turns on which lawyer better handles the case he or she is given

An Unconstitutional Fiction: The Felony-Murder Rule as Applied to the Supply of Drugs

James Wong and Kent Louie were looking for a good time in Chinatown, and around nine o\u27clock they got lucky. Two young women agreed to join them. The women, however, wanted some heroin first, so they gave their new companions money and asked them to purchase the drug. After the men obliged, both women injected themselves, and everyone proceeded to a hotel. The next morning, only one of the women woke up. James and Kent, it turned out, had really not been lucky at all; both were tried, convicted and sentenced for felony-murder. Although the men probably did not know it, their case was not that unusual. Six jurisdictions have held that a person is a murderer if he supplies illegal drugs to another person who later dies of an overdose. Five of the six have relied on the traditional felony-murder rule, holding that supplying drugs is a felony and the overdose is caused by the commission of that felony. The sixth jurisdiction has adopted a statutory variation of the felony-murder rule which is addressed specifically to drug suppliers. This Note will establish why such applications of the felony-murder rule are contrary to longstanding legal and constitutional principles. First, regardless of the felony committed by a drug supplier, the act of supplying the drug does not legally cause a user\u27s overdose and death. Second, those courts that use the felony-murder rule violate the constitutional guarantee of due process of law by failing to prove the causation element of the crime beyond a reasonable doubt. Finally, by treating drug suppliers as murderers, and thereby requiring that they be punished as severely as those who either intend or legally cause the deaths of others, the courts necessarily impose a disproportionate sentence in violation of the eighth amendment prohibition of cruel and unusual punishment

When Should the First Amendment Protect Judges from Their Unethical Speech?

Judges harm the judicial institution when they engage in inflammatory or overtly political extrajudicial speech. The judiciary can be effective only when it has the trust of the citizenry, and judicial statements of that sort render it impossible for citizens to see judges as neutral and contemplative arbiters. This lack of confidence would seem especially dangerous in times like these, when the citizenry is as polarized as it has ever been. Ethical codes across the country (based on the Model Code of Judicial Conduct) prohibit judges from making these partisan, prejudicial or otherwise improper remarks. Any discipline can be undone, however, if a court finds the discipline in violation of the First Amendment. Many courts have not even recognized this, and others have been confused about the proper First Amendment analysis to apply. Because the ethical code restrictions on speech are content-based, they would ordinarily receive strict scrutiny. But the great harm that judges’ unethical speech can pose warrants granting the state greater discretion in the disciplinary process. Specifically, the free speech rights of judges facing discipline for unethical extrajudicial speech should be subject not to strict scrutiny, but to the doctrine applied to public employees in Pickering v. Board of Education. Under Pickering, extrajudicial speech that does not involve a matter of public concern — such as racist or sexually harassing remarks — would not be protected at all. Extrajudicial speech that does involve a matter of public concern would have the court balance the judge’s interest in speaking against the state’s interest in prohibiting the speech. Additionally, a presumption of validity would accompany any ethical code provision that provided notice to judges in advance specifically what they are not to say and why

Impeaching Lying Parties with Their Statements During Negotiation: Demysticizing the Public Policy Rationale Behind Evidence Rule 408 and the Mediation-Privilege Statutes

Virtually all American jurisdictions have laws—either rules of evidence or mediation-privilege statutes or both—that exclude from evidence statements that parties make during negotiations and mediations. The legislatures (and sometimes courts) that have adopted these exclusionary rules have invoked a public policy rationale: that parties must be able to speak freely to settle disputes, and they will not speak freely if their statements during negotiation can later be admitted against them. This rationale is so widely revered that many courts have relied on it to prohibit the use of negotiation statements to impeach, even when the inconsistency of the negotiation statement reveals that the speaker either lied during the negotiation or is lying at trial. This Article challenges the public policy rationale, arguing that confidentiality has very little effect on an honest party\u27s willingness to speak about the facts during negotiation, and so when the rationale is invoked to prohibit impeachment, it operates only to protect the dishonest. The Article concludes by proposing a specific amendment to Federal Rule of Evidence 408, its state counterparts, and the mediation-privilege statutes that would permit impeachment by a prior inconsistent negotiation statement, but only if the statement clearly demonstrated intentional misrepresentation by the speaker

High Court Pretense, Lower Court Candor: Judicial Impartiality After Capterton v. Massey Coal Co.

Apolitical, impartial judging has always been our judicial ideal. In the last twenty years, however, special interest groups have sought power over (and through) judges by pouring millions into judicial elections, and the Court has recognized their first amendment right to do so. In the midst of this politicization of judicial elections, the Court five years ago reinforced the impartiality ideal, holding very broadly in Caperton v. Massey Coal Co. that it violates due process for a judge to sit whenever there is a “probability of bias,” i.e., whenever the average judge is unlikely to be neutral. Caperton involved a judge sitting on the case of his largest campaign contributor. The lower courts have thus far risen to the standard Caperton set. Several state courts are in the process of amending their recusal procedures to allow for full court review rather than relying on decisions only by the challenged judge himself or herself. Both the state and lower federal courts applying the decision have engaged in deeper, more candid assessments of a judge’s ability to be fair. There are instances in which the decision has been used as a backstop to prevent a judge from imposing a political agenda. With that said, the Supreme Court itself now needs to follow suit. The Court itself should shift to full Court review of disqualification motions, and it should apply the Caperton standard without its traditional consideration of the numerical balance on the Court. Just as importantly, it is time for the justices to end their participation in blatantly political activities that are prohibited for every other judge in the land, for the message it sends both the lower courts and the public about judicial impartiality

What a difficult task it is for music to fulfil the demands of an epic theatre: a discussion of the role of epic music in Bertolt Brecht's plays

Music is an essential component of theatre. Music was crucial for the early Greek plays, to the height of Italian opera and up to our current theatre. The writer and director Bertolt Brecht recognized the impact music had in the theatre and incorporated music into his extensive Epic Theatre theories. At the same time though, I have encountered discontinuity between Theatre and Music Studies, as the two rarely overlap. In this thesis I look to ascertain the exact role that music plays within Brecht’s Epic Theatre theories. I will also discuss if Brecht’s theories operate in the same format for all of my case studies and lastly, I will conclude if Brecht’s theories were static or if they developed over time. With this I hope to determine if Brecht’s Epic Music is an achievable theatrical device. To do this, I will first define Epic Theatre and Epic Music. From this I will formulate a structure against which to place the plays The Threepenny Opera, The Rise and Fall of the City of Mahagonny (1930) and The Mother (1932). I will then analyse my three case studies against this structure to determine how the music functions within each play. From this point I aim to determine the exact role that music plays within Brecht’s theories in order to give proper weight and significance to an essential component of Epic Theatre and to determine if Epic Music is a viable theory