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Cornell research puts memory on trial

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Mar 182008

LII is committed to interdisciplinary research and cooperation. In that spirit, we want to let you know about the results of a research project by Cornell professors Valerie Reyna and Chuck Brainerd that is likely to have major implications for legal proceedings and other branches of the criminal justice system. Using mathematical models, they discovered that memories are captured and recorded separately and differently in two distinct parts of the mind; and that, contrary to established belief and practice, children are less likely than adults to produce false memories and are therefore more likely to give accurate testimony when properly questioned. The research was funded by the National Science Foundation. Reyna and Brainerd have summarized their project and findings in a new book, The Science of False Memory, published by Oxford University Press.

Right-to-bear-arms argument tomorrow

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Mar 172008


On Tuesday, March 18th, the U.S. Supreme Court will hear oral arguments in District of Columbia v. Heller. It will be the Court’s first evaluation of the Second Amendment in almost 70 years, and it raises a question that has been long and passionately debated: whether the amendment provides an individual right to possess guns or a state’s right to form a militia, such as a National Guard unit. We ran this two weeks ago, but since the case is being argued tomorrow we thought we’d remind you:

The District of Columbia bans possession of handguns, and bans anyone from carrying a handgun or other deadly or dangerous weapon without a license within its borders (the “Gun Ban”). It also requires that any firearms which may be kept within the District, such as rifles, be kept either disassembled or with a trigger lock. These are some of the most restrictive gun laws in the nation. In 2003, Mr. Heller filed suit in the U.S. District Court for the District of Columbia claiming that these laws violate his Second Amendment right to “keep and bear Arms.” The District Court found that the Second Amendment does not give an individual a right to gun ownership except where the individual is a member of an organized militia, but the Court of Appeals reversed the decision. It found that handguns are lineal descendents of the pistols in use at the time of the American Revolution, and held, therefore, that the Gun Ban is unconstitutional. The Supreme Court will hear oral arguments in the case on March 18th.

The Supreme Court has not taken a Second Amendment case since 1939, and has never decided whether the Second Amendment confers a right to bear arms upon individuals or only upon the militias it refers to in its opening clause. In the intervening 69 years, the federal and state governments have passed many laws regulating and restricting the ownership and use of guns. Should the Supreme Court uphold the D.C. Circuit’s invalidation of the Gun Ban, it could have a substantial impact on these gun laws and will almost certainly lead to more litigation as gun rights advocates challenge those laws as violating the Second Amendment. If the Court finds that the Gun Ban is constitutional, it will strengthen the ability of government to regulate gun ownership, and may result in more restrictive gun laws across the country.

The full analysis, including a comprehensive set of links to briefs on both sides of the argument, is here:

Equity: definition of the day

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Mar 162008

In law, the term equity refers to a particular set of remedies and associated procedures. These equitable doctrines and procedures are distinguished from “legal” ones. Equitable relief is generally available only when a legal remedy is insufficient or inadequate in some way. This could be when a claim involves a particular piece of real estate, or if specific performance is the relief requested by the plaintiff.

The distinction arose in England where there were separate courts of law and of equity. Following this pattern in America some states created “chancery courts” dealing with equitable relief only. In other states, the courts of common law were empowered to exercise equity jurisdiction. Separate courts of chancery have largely been abolished and the same court that may fashion a legal remedy has the power to prescribe an equitable one.

williampaley.jpg“There is a principle which is a bar against all information, which is proof against all arguments and which cannot fail to keep a man in everlasting ignorance — that principle is contempt prior to investigation.”

Attributed to Herbert Spencer by Alcoholics Anonymous. But that’s not the end of the story….

28413874-939A-4729-BE40-28F5FB0E2ED7.jpgMost of us have heard the phrase “ignorance of the law is no excuse” (any moderately adventurous junior-high-schooler has probably heard it more than once). It was first recognized in the seventeenth century (it is often attributed to Coke), but probably had its origins a lot earlier than that. Many — including us — have interpreted it as a mandate for legal publishing. After all, if we’re going to be expected to know this stuff, there should be a place where we can read it, right?

Today’s question is a little different take on this old bromide. Surely this saying conjures up a picture in your mind. Who is that ignorant person? What part of the law don’t they know? What can be done about it?

Answers in the comments, please….

Our favorite quotes: Rene Descartes

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Mar 122008

A state is better governed which has few laws, and those laws strictly observed.

From Discourse on Method of Rightly Conducting Reason, and Seeking Truth in the Sciences (1637)

How come the flag has only 48 stars, Daddy?

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Mar 112008

grandoldrag.jpgAbout once a week, we get a note from somebody who’s been reading 4 USC 1:

The flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field.

Usually it’s accompanied by a snide remark about our up-to-date materials, or an expression of concern for our mental health. Our eccentricity takes a different form — we try to figure out how and why these things happen. Turns out that the remaining two stars were added by executive order (you can see this in the Notes to 4 USC 1). The algorithm (“one star per state”) is given in 4 USC 2.

There are lessons in this for the novice researcher who’s reading statutes:

  1. Always, always read the notes.
  2. It’s a good idea to look at the sections of the US Code or CFR that are adjacent to the one you (or the search engine) thought you wanted. Taking a look at the “embracing” table of contents — the one that includes the particular section you’re looking at — is usually a good idea, too. Often they have important and helpful information — or they show you what you were really looking for.

Oh, and the way legal information is organized makes no sense, anyway.

Demurrer: definition of the day

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Mar 102008

An answer to a complaint at civil law that does not dispute the facts of the complaint but contends that the facts, even if true, do not constitute a wrongdoing. The Federal Rules of Civil Procedure have replaced the demurrer with a motion to dismiss. See, e.g. United States v. Carolene Products Co. 304 U.S. 144 (1938). But the staff will be glad to tell you that demurrer still applies at LII.

(nudge) Funny names for legislation (nudge)(nudge)

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Mar 082008

350px-OgrabmeSo, the fact that we turn to the US Code’s Table of Popular Names for entertainment is probably just a sign that nobody at the LII has a social life, to speak of. But let’s face it — sometimes the US Code is good for a few laughs about something other than its content. This is never more true than when posturing politicians try to market legislation by giving it catchy names, like for example the Lead-Zinc Small Producers Stabilization Act of October 3, 1961.

OK, so we were just kidding about that one, and if you followed the link you now know that it is listed as “omitted”, which is what the Law Revision Counsel’s Office says when they forget that they left something in the glove compartment with all the parking tickets. But seriously, folks, there are some funny ones.

Take, for example, the “Oh, Grab Me” Act. It was part of a series of legislative events surrounding the Embargo Act of 1807, an essentially punitive act leveled at the British — and very disruptive at a time when the economies of the post-colonial US and the UK were still deeply interlinked. “Oh-grab-me”, you will note, is “embargo” spelled backwards, and is thus the first example of palindromic wit in American legislative history. Its effects were undone by the Non-Intercourse Act of 1809, which seems fitting, somehow.

Our favorite quotes: Carrie Chapman Catt

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Mar 072008

There are two kinds of restrictions upon human liberty — the restraint of law and that of custom. No written law has ever been more binding than unwritten custom supported by public opinion.
Carrie Chapman Catt, in a speech at Senate hearing on Woman’s suffrage