Burden of Proof

Although the Constitution does not mention burden of proof, certain principles are widely accepted as having constitutional status. The first and most significant of these is the rule that in a criminal case the government must prove its case ‘‘beyond a REASONABLE DOUBT.’’ This is the universal COMMON LAW rule, and was said by the Supreme Court in IN RE WINSHIP (1970) to be an element of DUE PROCESS. This standard is commonly contrasted with proof ‘‘by a preponderance of the evidence’’ or ‘‘by clear and convincing evidence.’’ The standard of proof is in practice not easily susceptible to further clarification or elaboration

Jury Discrimination

Jury discrimination was first recognized as a constitutional problem shortly after the CIVIL WAR, when certain southern and border states excluded blacks from jury service. The Supreme Court had little difficulty in holding such blatant racial discriminationinvalid as a denial of the equal protection of the laws guaranteed by the recently adopted Fourteenth Amendment. But, beyond such obvious improprieties, what should the principle of nondiscrimination forbid? Some kinds of ‘‘discrimination’’ in the selection of the jury are not bad but good: for example, those incompetent to serve ought to be excused from service, whether their incompetence arises from mental or physical defect, from demonstrably bad character, or from bias. No one has seriously argued that American jury service ought to be determined wholly by lot, as it was among the citizens of Athens. In addition, it has been the uniform policy of American jurisdictions to excuse from service some who are competent, but whose service would work a hardship on them or others: doctors, ministers, and parents who care for small children have been exempted from service on such grounds

Talking About Religion In The Language Of The Law: Impossible But Necessary (Speech)

In speaking to this conference about religion and law I am in a decidedly peculiar position, for it may be that every one of you has thought longer and harder about the relation between these two forms of life than I have. When Scott Idleman first asked me to talk to you, I explained that I was no expert, to put it mildly, and that the most that I could offer would be the reflections of a neophyte. He said that this was fine-perhaps he was just desperate for a speaker; perhaps he thought that it might be helpful to have a fresh look from the outside at some of the difficulties and possibilities of thought in this field. Whether I can achieve such a thing is of course a real question; but I do want to say that I am grateful to him and to you for the opportunity, since in thinking about this topic for this occasion I have learned a great deal. Perhaps you can take what I say as the observations of a visitor to a terrain that is familiar to you

An Old-Fashioned View of the Nature of Law

The law is a not an abstract system or scheme of rules, as we often speak of it, but an inherently unstable structure of thought and expression. It is built upon a distinct set of dynamic and dialogic tensions, which include: tensions between ordinary language and legal language; between legal language and the specialized discourses of other fields; between language itself and the mute world that lies beneath it; between opposing lawyers; between conflicting but justifiable ways of giving meaning to the rules and principles of law; between substantive and procedural lines of thought; between law and justice; between the past, the present, and the future. Each of these tensions is present whenever a lawyer or judge goes to work. None of them can be resolved by resort to a rule or other directive, but must be addressed anew by the lawyer and judge in each case as it arises, by the exercise of an art of language and mind that is defined by the nature of these tensions themselves

How Should We Talk about Corporations? The Languages of Economics and of Citizenship

My immediate subject in this Comment is section 2.01 of the American Law Institute\u27s proposed Principles of Corporate Governance (Tentative Draft No. 2), which defines in general terms the proper objectives and conduct of a business corporation. My larger subject has to do with the adequacy and inadequacy of various languages in which corporate pur­poses and limits might be expressed, and especially with the limits of the economic language used in the ALI Draft

Translation, Interpretation, and the Law

As my title suggests I wish here to elaborate some connections among the practices we know as translation, interpretation, and law

The Invisible Discourse of the Law: Reflections on Legal Literacy and General Education

My subject today is legal literacy, but to put it that way requires immediate clarification, for that phrase has a wide range of possible meanings with many of which we shall have nothing to do. At one end of its spectrum of significance, for example, legal literacy means full competence in legal discourse, both as reader and as writer. This kind of literacy is the object of a professional education, and it requires not only a period of formal schooling but years of practice as well. Indeed, as is also the case with other real languages, the ideal of perfect competence in legal language can never be attained; the practitioner is always learning about his language and about the world, he is in a sense always remaking both, and these processes never come to an end. What this sort of professional literacy entails, and how it is to be talked about, are matters of interest to lawyers and law teachers, but are not our subject here. The other end of the spectrum of legal literacy would mean the capacity to recognize legal words and locutions as foreign to oneself, as part of the world of the Law. A person literate in this sense would know that there was a world of language and action called law, but little more about it: certainly not enough to have any real access to it

Forgotten Points in the Exclusionary Rule Debate

Most contemporary discussions of the exclusionary rule assume or assert that this rule is not part of the fourth amendment, nor required by its terms, but is rather a judicial remedy that was fashioned to protect those rights (against unreasonable search and seizure) that actually are granted by the fourth amendment. The protection is said to work by deterring official violations; this is, however, an odd use of the word, for the rule does not punish violations but merely deprives the government of some of the benefits that might ensue from them, namely the use in the criminal case of evidence so obtained

Intellectual Integration

In this paper, I want to talk about the activity of intellectual integration itself: about what it can mean to integrate-to put together in a complex whole-aspects of our culture, or of the world, that seem to us disparate or unconnected; and what it can mean in so doing to integrate-to bring together in interactive life-aspects of our own minds and beings that we normally separate or divide from each other: I want to think of integration, that is-and of its opposite, disintegration-as taking place on two planes of existence at once, the cultural and the individual. For what is at stake for us in the fragmentation of our culture is the fragmentation of our own minds and lives; and the integrative processes by which we resist this fragmentation on one plane of experience, as we try to bring things together to make new wholes, are simultaneously at work on the other as well