Creative Content

Amanda Knox Part 4: “Caught Between Two Traditions”: Italy’s Hybrid Legal System

“Caught Between Two Traditions”[360]: Italy’s Hybrid Legal System by Martha Grace Duncan*   All I am going to say is that she wasn’t discriminated against because of being an American. Dr. Stefano Maffei[361] Maybe the [limited] reforms in our criminal procedure are a kind of inoculation against the American way. After all, the adversarial system […]

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Amanda Knox Part 2: Behind the Cartwheel: Explaining Amanda’s “Strange” Behavior

by Martha Grace Duncan*   In our society any man who does not weep at his mother’s funeral runs the risk of being sentenced to death. Albert Camus[167] Knox, it seems, spent four years in prison largely for a failure to grieve in quite the way that various middle-aged men would have liked. Charlie Lyne, […]

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What Not To Do When Your Roommate Is Murdered In Italy: Amanda Knox, Her “Strange” Behavior, and the Italian Legal System

By: Martha Grace Duncan* Abstract One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released.  Retried in absentia, she was convicted again, only […]

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Witt-Less: A History And Analysis Of The U.S. Military’s Failure To Comply With The Ninth Circuit’s Due Process Standard For ‘Don’t Ask, Don’t Tell’

Rainbow flag

Ari Freilich[1]

Please click here for a PDF version of the article.

I. Introduction

In its May 2008 ruling in Witt v. Dep’t of the Air Force,[2] the Ninth Circuit Court of Appeals became the first court in the nation to subject Don’t Ask, Don’t Tell (“DADT”) to a standard of “heightened scrutiny” and, more generally, to explicitly require more than deferential rational basis justification for “government attempts to intrude upon the personal and private lives of homosexuals[.]”[3] But Witt did more than simply articulate an abstract due process standard for subsequent gay rights cases. Surprisingly scant attention has been paid to the fact that, in applying heightened scrutiny to DADT, Witt mandated a new, significant, evidentiary burden shift against the military in discharging servicemembers for their sexual orientation. The Witt Court invalidated DADT’s blanket, mandatory discharge policy in favor of a fact-specific standard requiring actual, individualized proof of military necessity in order to substantiate a servicemember’s discharge under DADT. That decision, and the “Witt Standard” borne of it, should have been a watershed moment for gay rights in America because the Ninth Circuit Court afforded significantly expanded substantive due process protections to gay men and women within its jurisdiction.[4] The decision should also have had an immediate impact on gay servicemembers’ right to serve openly in the U.S. Armed Forces. Although the military’s highest ranking officials acknowledged the Witt Standard as binding and approvingly cited it in federal court cases, the military simply, absolutely, and unconstitutionally ignored the decision in practice. Continue reading “Witt-Less: A History And Analysis Of The U.S. Military’s Failure To Comply With The Ninth Circuit’s Due Process Standard For ‘Don’t Ask, Don’t Tell’”

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The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand A More Concrete Legal Analysis By Courts

Pro choice protest sign

Rebecca Bucchieri*

Please click here for a PDF version of the article.

Introduction

The doctor tells Ms. Jones, “Here I see a well-developed diaphragm and here I see four healthy chambers of the heart.”[1] Words that should sound uplifting instead feel like punishment. The doctor continues to describe the size and shape of the fetus as he shows Ms. Jones the image on the ultrasound machine. Ms. Jones is not at a prenatal care appointment. She is at an abortion clinic undergoing a mandatory pre-abortion ultrasound. Ms. Jones is not listening to each of the doctor’s words in joyful anticipation of the next. She is clenching her eyes shut and wishing she could shut off the machine resonating the fetus’s heartbeat. Continue reading “The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand A More Concrete Legal Analysis By Courts”

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Windsor, Federalism, and the Future of Marriage Litigation

Edie Windsor outside SCOTUS

Mark Strasser*

Please click here for a PDF of the article

In United States v. Windsor,[1] the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).[2] Now that section 3 has been invalidated, section 2 of DOMA may also be challenged.[3] The constitutionality of DOMA section 2 was not before the Windsor Court, so the Court could not have been expected to address its validity directly. Nonetheless, the Windsor opinion provides surprisingly little express guidance with respect to whether section 2 also violates constitutional guarantees.[4] Further complicating any analysis of that section’s validity is that the section has not been authoritatively construed. The constitutionality of section 2 (and even its being subject to challenge) will depend greatly on its authoritative interpretation and, in addition, on a clear articulation of the constraints, if any, on the power of a state to refuse to recognize a marriage validly celebrated in a sister domicile. If section 2 is construed narrowly and is found not to afford states a power that they do not already possess, then it would seem immune from challenge; however, in that event, a key provision of several state mini-DOMAs will lose even the veneer of legality. Continue reading “Windsor, Federalism, and the Future of Marriage Litigation”

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