传闻证据在美国纽约州法院的适用(上)

导　言当我们迈入新世纪之际 ,纽约仍然是少数几个没有制定证据法典的州之一。自 1 975年美国联邦证据法制定以来 ,迄今已有 3 7个州直接适用了该法典 ,同时 ,在联邦证据法制定以前 ,已有另外 8个州制定了适用于本地区的证据法典。然而 ,纽约州的证据立法工作并没有因此而停滞不前。在传闻证据领域 ,纽约州上诉法院进行了引人注目的改革 ,重新定义了传闻证据的可采性标准 ,史无前例地对当事人的庭外陈述加以认可。许多论著已对纽约州证据立法的曲折历程进行了详尽的记述。关于法典化的一个主要争点就是制定证据法典是否有助于最大限度地实现…     

In the Michigan Court of Appeals: In the Matter of AMB,a Minor

HOLDING: In the accelerating rush to judgment that occurred here, a series of legal errors and missteps following a preliminary hearing compounded what was already an excruciatingly difficult and complex situation. The record strongly suggests that no one involved in the protective proceeding had ever communicated directly with baby AMB's parents and only the testifying doctor had ever seen AMB, an infant with life-threatening disabilities. Thus, a duly enacted statutory process designed to protect individual rights, to allow the intelligent exercise of these rights, and to assure balanced and considered decision making became, instead, the opposite. There was such a relentless disregard for basic principles of law that in its opinion, the Michigan Court of Appeals attempted to assure that this tragedy is never repeated in that state.     

传闻证据在美国纽约州法院的适用(下)

(上接本刊 2 0 0 2年冬季号第 492页 )柯托案中的上述裁决对格拉西案所确立的原则具有意义深远的扩张作用。柯托案与格拉西案实际上存在相当大的区别。在格拉西案中 ,是被告人本人找到证人 ,跟他说自己的律师想跟他谈一下关于案件的问题。此外 ,被告人的叔叔 (身份明确 )曾与证人交谈并许诺给证人几千块钱。在开庭审判之前 ,证人已经收到了 2 0 0 0元。相形之下 ,柯托案中的有关证据就显得过分苍白了。虽然被告人已经被保释 ,但没有任何证据证明被告人本人亲自实施了威胁行为 ,同时也没有任何证据证明存在着直接的、实质性的威胁。此外 ,在…     

A Reevaluation of the New York Court of Appeals: The Home, the Market, and Labor, 1885-1905

Closely examining a range of New York Court of Appeals police-power cases during the period 1885 to 1905, this article demonstrates that the New York Court had a long history of accepting and continually expanding the police power. In these police-power cases, one finds the court grappling with an evolving sense of how to balance the concept of and need for a well-regulated society against the rights of an individual in an increasingly complex and interconnected world, as well as a tenacious refusal to abandon Victorian bourgeois norms regarding the dichotomy between the home and workplace. By contextualizing and historicizing New York Court of Appeals cases, the article challenges the dominant historiographical interpretations about late-nineteenth-century law. Moving away from a paradigm that labels the court conservative or liberal, formalist or realist, it argues that the court participated in creating a regulatory state while also employing a reasoning that adopted a sharp distinction between the market and the site of the domestic.     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

New York State of Mind: Parental Incarceration and Children's Visitation in New York State

The incarceration of a parent has a variety of negative effects on a child's psychological, academic, and developmental success. Children can end up in foster care as a result of the state terminating parental rights due to the parent's incarceration. Despite imprisonment of their parent(s), maintenance of visitation with the parent(s) is still important for their children. However, not all prisons have visitation programs that are suitable to visiting children. This Note proposes a model state statute that will recognize the importance of visitation, implement “child friendly” visitation programs, facilitate training for prison staff, and provide transportation for children in major cities to the prison facilities.     

The Mariel refugee and the New York Criminal Court

In the spring of 1980, the Mariel Boat Lift brought refugees from Communist Cuba to the shores of Florida. Most refugees came seeking political freedom, but many were sent by the Cuban Government directly from its prisons and mental institutions. Literal rejects of their own society, they arrived in this country and spent many months interned in refugee camps. As they moved out into local communities, their behavioral problems began to come to the attention of local authorities. This paper describes the "Marielitos" seen in the Forensic Psychiatry Clinic for the Criminal and Supreme Courts of New York between mid-1980 and mid-1985. It explores how their reactions to their new environment may be affected by their past psychiatric and criminal histories, their language barrier, and the stress of the emigration experience.     

The DC Court of Appeals resurrects Redskins dispute

Seven American Indians petitioned to cancel trade mark registrationsfor various REDSKINS trade marks; the district court's grantof summary judgment against them for laches (unreasonable delay)was remanded by the Court of Appeals for the DC Circuit fora rehearing in respect of one of the petitioners on the basisthat the district court ‘started the laches clock’in 1967, when he was only 1 year old, thus contravening theequitable principle that laches runs only from the time a partyhas reached the age of majority.     

US Appeals Court invalidates retroactive assignments of copyrights

A unanimous panel of the US Court of Appeals for the SecondCircuit held that a ‘retroactive’ assignment ofownership from a co-author of a copyright to an alleged infringercannot defeat the other co-author's accrued infringement claims.The court also held that a written agreement could not ‘ratify’an earlier oral agreement to transfer ownership.