Volume 87, Issue 5

Articles

The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims Prof. Tom Lininger
87 Texas L. Rev. 857 (2009)

This Article examines courts' treatment of forfeiture doctrine in the wake of the Supreme Court's decision in Giles v. California.  Prior to Giles, courts in most jurisdictions held hearsay statements admissible whenever a declarant's silence was procured by an accused's wrongdoing.  Giles, however, interprets the Confrontation Clause to bar admission of such evidence, unless the prosecution can show that the wrongdoing was specifically motivated by a desire to prevent the declarant's testimony.  Professor Lininger considers the likely ramifications of this decision for victims of domestic violence and domestic homicide.  He proposes a new judicial framework for approaching forfeiture doctrine as well as a modification of evidentiary rules, which together would permit courts and legislatures to comply with Giles while still protecting victims of domestic violence.

Responses in See Also:

Being Heard after Giles: Comments on the Sound of Silence
 
 Prof. Myrna S. Raeder

In this comment, Professor Raeder examines the major claims in Professor Lininger’s article, agreeing with some but not all of his suggestions. 

A Response to The Sound of Silence
 
 Prof. Andrew King-Ries

In this comment, Professor King-Ries explores Professor Lininger’s proposed solution to the conundrum created by the Supreme Court’s decision in Giles v. California, regarding forfeiture by wrongdoing in the domestic violence context. 

Control Killings
 
 Prof. Deborah Tuerkheimer

In this comment, Professor Tuerkheimer advances the notion of “control killings,” or viewing domestic violence homicide as the final act in a pattern of various forms of abusive conduct.

There's Still Hope: Life After Giles v. California
 
 Prof. Cheryl Hanna

In this comment, Professor Hanna explains why she believes Professor Lininger’s article is so important: it develops a test for getting around the problem created by the Supreme Court for the prosecution of domestic violence murders. 

Giles v. California: Is Justice Scalia Hostile to Battered Women?
 
 Prof. G. Kristian Miccio

In this Comment to Professor Lininger’s article, Professor Miccio focuses on two important moral dilemmas highlighted by the Court’s decision in Giles v. California: “(1) whether a search for truth should be sacrificed to our notions of Due Process; and (2) whether Giles’s protection of the accused is premised on beliefs tainted by sexism.” 

In Defense of Giles: A Response to Professor Lininger
 
 Prof. James F. Flanagan

In this comment, Professor Flanagan explains that he disagrees with Professor Lininger’s approach to the forfeiture issue, and in particular opposes the use of bright-line tests to satisfy Giles’ inferred intent standard. 
Putting Probability Back into Probable Cause Prof. Max Minzner
87 Texas L. Rev. 913 (2009)

In his Article, Professor Max Minzner advocates for a novel change to the search-warrant acquisition process.  When police officers apply for a warrant or conduct a probable-cause search, courts do not consider the individual officers' historical success rates in making such searches.  Max Minzner argues that this data, along other data, such as the success rate of an officer's unit, should be considered in courts' probable-cause analyses.  Minzner maintains that applying information about the relative success of past searches can help to prevent unfruitful searches and increase the likelihood of discovering admissible evidence.

Responses in See Also:

Comment on Max Minzner, Putting Probability Back into Probable Cause
 
 Prof. Craig S. Lerner

In this comment, Professor Lerner addresses several points about Professor Minzner’s article. 

Probability, Probable Cause, and the Law of Unintended Consequences
 
 Prof. Lawrence Rosenthal

In this comment, Professor Rosenthal agrees that success rates of officers should be taken into account in making probable cause determinations, but points out one area that Professor Minzner may have overlooked: the problem of overdeterrence. 

Book Reviews

Three Theories of Religious Equality . . . and of Exemptions Prof. Abner S. Greene
87 Texas L. Rev. 963 (2009)

Abner Green reviews Martha Nussbaum's recent book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality, and in doing so attempts to illuminate the foundations of religious equality in America.  Greene also compares Nussbaum's view of equality in the Religion Clauses to the views presented by Christopher Eisgruber and Lawrence Sager in Religious Freedom and the Constitution, and Brian Barry in Culture and Equality: An Egalitarian Critique of Multiculturalism.  Greene also considers the broader question of how we grant religious exemptions from otherwise applicable law; he explores how both Nussbaum and Eisgruber and Sager characterize such exemptions.

Notes

The Need for a Refined Balancing Approach When American Discovery Orders Demand the Violation of Foreign Law Keith Y. Cohan
87 Texas L. Rev. 1009 (2009)

Expansive discovery is one of the hallmarks of modern American litigation.  But what happens when uncovering important information requires the violation of foreign law?  Courts face two important questions: whether to issue discovery orders that could subject litigants to criminal sanctions, and in the case of noncompliance, whether to impose sanctions on such litigants.   In this Note, Keith Cohan examines the conflicts that arise and how courts attempt to resolve them, and discusses alternative solutions.
Current Case: American Council of the Blind v. Paulson -- U.S. Currency and Disability-Discrimination Law Emily Baker Falconer
87 Texas L. Rev. 1045 (2009)

Emily Falconer considers American Council of the Blind v. Paulson, a recent D.C. Circuit decision in which the court agreed that the current design of U.S. currency discriminates against the blind, thus violating the terms of § 504 of the Rehabilitation Act.  Falconer argues that there is an even more powerful, constitutional basis for demanding the redesign of U.S. currency.  Falconer argues that future litigation over U.S. currency should be resolved under the Due Process Clause.

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