Law Fish News for 10-09-2018

“Pay off Debt – Your Birth Certificate is Worth Millions” – Busting Myths

Eighth Amendment

”Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture , and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution. ” 44 In thus upholding capital punishment inflicted by a firing squad, the Court not only looked to traditional practices but examined the history of executions in the territory concerned, the military practice, and current writings on the death penalty. 45 The Court next approved, under the Fourteenth Amendment’s due process clause rather than under the Eighth Amendment, electrocution as a permissible method of administering punishment. 46 Many years later, a divided Court, assuming the applicability of the Eighth Amendment to the States, held that a second electrocution following a mechanical failure at the first which injured but did not kill the condemned man did not violate the proscription. Divestiture of the citizenship of a natural born citizen was held in Trop v. Dulles, 48 again by a divided Court, to be constitutionally forbidden as a penalty more cruel and ”more primitive than torture,” inasmuch as it entailed statelessness or ”the total destruction of the individual’s status in organized society. ” ”The question is whether [a] penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment. ” A punishment must be examined ”in light of the basic prohibition against inhuman treatment,” and the Amendment was intended to preserve the ”basic concept … [of] the dignity of man” by assuring that the power to impose punishment is ”exercised within the limits of civilized standards. Justice Frankfurter tested the issue by due process standards. Four Justices joined the plurality opinion while Justice Brennan concurred on the ground that the requisite relation between the severity of the penalty and legitimate purpose under the war power was not apparent. 

Four Justices dissented, denying that denationalization was a punishment and arguing that instead it was merely a means by which Congress regulated discipline in the armed forces. 

Keywords: [“punishment”,”amendment”,”Justice”]
Source: https://constitution.findlaw.com/amendment8/annotation05.html

Supreme Court denies quick review of DACA case in unusual request for cert before judgment

Supreme Court denies quick review of DACA. U.S. Supreme Court. The U.S. Supreme Court on Monday refused to quickly review a judge’s injunction that bars the Trump administration from phasing out a program protecting immigrants brought to the country illegally as minors. 

The Supreme Court denied the U.S. Justice Department’s request for direct review of the preliminary injunction, report the Washington Post, the New York Times and Politico. The Supreme Court can still decide to hear the case after a decision by the San Francisco-based 9th U.S. Circuit Court of Appeals. At issue was the president’s power to rescind the program known as Deferred Action for Childhood Arrivals. 

The certiorari before judgment process is usually used in cases involving national crises, according to the Times. Such cases include President Harry Truman’s seizure of the steel industry and President Richard Nixon’s refusal to turn over White House tapes. It has been nearly 30 years since the process was used to decide a case before a federal appeals court issued a decision, according to a brief filed with the court. Alsup had ruled that the rescission of DACA was based on a flawed legal premise that the Department of Homeland Security lacked authority to create the program. As a result, the plaintiffs are likely to succeed on the merits of their claim that the DACA termination decision was arbitrary and capricious, he said. 

Another federal judge, U.S. District Judge Nicholas Garaufis of Brooklyn, New York, has also issued an injunction barring the wind down of DACA. The administration did not seek a stay of those injunctions. As a result, people currently protected by DACA can still file renewal applications. 

Keywords: [“Court”,”U.S.”,”Supreme”]
Source: http://www.abajournal.com/news/article/supreme_court_denies_quick_review_of_daca_in_unusual_request_for_cert_befor/

Life Behind the CV: A Case Study of an Unusual Legal Scholar

From Wigmore’s perspective, courts failed to appreciate that academic communities maintained their own internal safeguards against dubious conclusions, thus obviating the need for cross-examination in court. After graduating from Harvard Law and a stint undertaking legal research for an energetic lawyer named Louis Brandeis, Wigmore set his sights on a career as a legal scholar. Tokyo’s Keio University was seeking a scholar to teach the common law, and the president of Harvard University recommended Wigmore, then 26, for the position. Wigmore arrived during the Meiji era, a period when Japan had cast off its isolationist policy and sought to westernize as quickly as possible. As a professor of Anglo-American law and a shortstop on what was probably Tokyo’s first-ever baseball team, Wigmore personified the Japanese western turn. 

Yet once he began his tenure at Keio, he grew intensely interested in Japanese feudal law. Over the course of his three years in Tokyo, Wigmore became the most prolific scholar of Japanese legal history in the world. When Wigmore later produced his tome on evidence law, he championed these principles time and again in his calls for doctrinal reform-particularity, judicial latitude, balancing tests. In an era when Japan sought to westernize its legal system as quickly as possible, Wigmore wanted to easternize the American rules of evidence. Once more, Wigmore’s professional work reflected his own biography. 

Perhaps the most poignant illustration of the course of life behind Wigmore’s CV was his search for a father figure. Wigmore forsook those wishes, rejecting both the business and the city. 

Keywords: [“Wigmore”,”Japanese”,”Law”]
Source: http://startingpointsjournal.com/the-election-of-1940-2/

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