Copyright (c) 2009 All rights reserved. http://works.bepress.com/martin_belsky Recent documents in Martin H. Belsky en-us Sun, 31 May 2009 09:04:18 PDT 3600 http://works.bepress.com/martin_belsky/57 http://works.bepress.com/martin_belsky/57 Tue, 04 Mar 2008 07:26:05 PST Before a criminal trial begins, the state must defend its right to use almost every piece of evidence and even to commence proceedings. Was the defendant properly questioned? Was the evidence properly seized? Did the victim make a valid identifica-tion? Can the case be retried? Ever since 1961, pre-trial litigation of these questions has often determined trial result.This article is presented in four parts, synopsizing the current state of the law in Pennsylvania on the issues of confessions, search and seizure, identifications and double jeopardy. This review is not intended to detail the answers but only to allow a general understanding of the questions and to provide guidance for further research. Martin H. Belsky Criminal Law http://works.bepress.com/martin_belsky/56 http://works.bepress.com/martin_belsky/56 Tue, 04 Mar 2008 07:19:42 PST In Commonwealth ex rel. Specter v. Levin,1 the Pennsylvania Supreme Court dismissed, in a four-to-three order 2 and later opinion, challenges to a reapportionment plan for the Pennsylvania State Senate and House of Representatives prepared by the Pennsylvania State Legislative Reapportionment Commission. An appeal from that order and opinion was dismissed "for want of a substantial federal question" by the United States Supreme Court on October 10, 1972. A complaint under the Civil Rights Act challenging the reapportionment plan was later dismissed by a three-judge court on May 8, 1973. Thus ended this author's journey through the "political thicket" 6 of reapportionment in Pennsylvania. This article seeks to analyze that litigation experience and to relate it to the present state of reapportionment law as detailed in the Pennsylvania Supreme Court decision and in the later rulings of the United States Supreme Court. Martin H. Belsky http://works.bepress.com/martin_belsky/55 http://works.bepress.com/martin_belsky/55 Tue, 04 Mar 2008 07:11:11 PST On December 6, 1972, a new Crimes Code, was approved, to be effective June 6, 1973. The new Crimes Code is the first real legislative attempt since 1860 to codify the criminal laws of the Commonwealth of Pennsylvania. However, because of political realities, it is not a complete codification, but rather an attempt to restructure only those provisions found in the former Penal Code.In the comments of the Joint State Government Commission, the drafters of the new Crimes Code sought to convince the legislature and the public that few substantive changes had been made., In fact, by the elimination of common law offenses, the grading of offenses, the mandating of jury instructions, and the establishment of new defenses, the Crimes Code did in fact make changes in the substantive criminal law and, in addition, to the entire administration of criminal justice.This article will seek to explore some of the practical problems, from making a lawful arrest, through preparation of indictments, to trial, that have resulted from the new Crimes Code. Martin H. Belsky Criminal Law http://works.bepress.com/martin_belsky/54 http://works.bepress.com/martin_belsky/54 Mon, 03 Mar 2008 17:44:56 PST This article will describe the legal and policy burdens of proof applicable to environmental decision-making and the shifts that have occurred in allocating those burdens. The initial change occurred when common-law principles gave way to a pro-protection legal framework established during an "environmental era." The second change occurred more recently when a new environmental policy law agenda was set. Through regulatory reforms, policy alterations, statutory proposals and budgetary and personnel actions, the federal executive is now seeking to develop a more pro-development structure and again place the burden of proof on those seeking to secure government action to protect the environment. The result is that those seeking protective action must present a greater amount of evidence than previously necessary to justify federal government intervention.Parts I and II of this article review the state of environmental law prior to the Reagan Administration. Until the "environmental era," commencing in the mid-1960's, environmental protection law was limited. Under traditional common law rules, the burden was on those opposing development to show how an identifiable entity had unreasonably and specially harmed or damaged them. That burden was difficult to meet. In the late 1960's and early 1970's, increasing public awareness of environmental dangers, and the inability of traditional legal doctrines to deal with those dangers, led to the passage of numerous laws seeking to assure protection of the environment, and the creation of institutions to implement those laws. Mechanisms were adopted to force environmental values to be considered in all actions, to prescribe protective national environmental standards, to force technology to meet those standards, and to increase the number and size of areas to be protected from improper use. In burden of proof terms, in choosing between protection and development, the government was to "err on the side of caution."Part III of this article discusses the changes adopted by the Reagan Administration. Based on careful planning and research, the new political leaders fixed and then implemented a fully developed agenda. The philosophy of "limited government" was carried out under the doctrines of "regulatory reform" and "balancing the budget." The ideology of "state's rights" was pursued through "new federalism." Finally, the belief in "self-government" was promoted through "privatization." In the area of environmental protection, each of these policies was used to justify fundamental institutional and legal changes. The burden of proof was placed on those seeking to have controls adopted or enforced or seeking to restrict development. These persons would now have to overcome the presumption against such controls or limitations, especially if action was to be taken by the federal government. Part IV of this article considers the results of this shift in the burden of proof and what it suggests for the future of environmental law and policy. Early in the Reagan Administration, environmental policies became a major political issue. In response to concerns expressed by the public, Congress and even members of the business community, the Administration made some fine tuning and better articulation of policies. Controversial proposals and personalities were dropped; however, the goal has not changed. The presumption remains against imposing additional controls or restricting development and those seeking to overcome this presumption must come forward with sufficient evidence to justify intervention. Martin H. Belsky Environmental Law http://works.bepress.com/martin_belsky/53 http://works.bepress.com/martin_belsky/53 Mon, 03 Mar 2008 16:52:10 PST There is a scientific consensus that the most rational way to look at activities in or affecting the ocean is to consider the effects of such activities on the entire ecosystem. This, in turn, has led to calls for total ecosystem management. Historically, international law rules have hindered attempts to establish such a comprehensive approach to controls over marine uses. Recent developments in the establishment of both a treaty and the customary law of the sea may now provide an opportunity for the emergence of new international norms requiring total ecosystem management regimes. Martin H. Belsky Environmental Law http://works.bepress.com/martin_belsky/52 http://works.bepress.com/martin_belsky/52 Mon, 03 Mar 2008 16:45:36 PST This Article will discuss the type of forensic misconduct encountered in United States v. Young - improper closing arguments in criminal cases. Attempts to control such misconduct have been limited by the legal profession's acceptance of the "sporting theory of justice and its "trial by combat" response" to the actions of trial counsel. This combative philosophy has produced the "retaliation" or "invited response" doctrine, hereinafter referred to simply as the "retaliation doctrine." In accordance with this doctrine, courts have accepted this "eye for an eye" approach and excused courtroom misconduct instead of enforcing rules which control and limit such misbehavior. Martin H. Belsky Jurisprudence http://works.bepress.com/martin_belsky/51 http://works.bepress.com/martin_belsky/51 Mon, 03 Mar 2008 16:33:25 PST More than twenty years ago, the United States Congress recognized that this nation had "to give serious and systematic attention to our marine environment and to the potential resources of the oceans." It, therefore, established a special Presidential Commission on Marine Science, Engineering and Resources to "formulate a comprehensive, long-term, national program for marine affairs designed to meet present and future national needs in the most effective possible manner.In 1969, that Commission, popularly called the Stratton Commission, issued its report. It detailed a "plan for national action" premised on a comprehensive ocean policy and program with one new federal agency responsible for implementation.The Commission found that overlapping and conflicting laws and regulations and the lack of coordination among federal, state, and local agencies hindered our nation's ability to both protect the oceans and coasts and develop our ocean resources. Moreover, to protect the environment and provide for "constructive management of the living resources of the sea," an "understanding of ecosystem dynamics" was essential.The solution had to be "comprehensive systems" to regulate our coasts, to manage living and nonliving resources, and to monitor and predict environmental changes in the oceans. Ocean programs and policies had to be integrated by placing the major responsibilities in one federal agency, and by providing mechanisms within that agency for coordination of the activities of other federal, state, and local agencies. In this article, I will compare the premises and recommendations of the Stratton Commission to America's national ocean policy and program today. I will then suggest that a mechanism now exists to provide for the establishment of a coordinated and integrated national ocean policy. That mechanism is the new international law requirement of comprehensive research, planning, and management for the ocean's space and resources. This comprehensive (or "ecosystem") model for ocean policy and management is binding in domestic United States law and can be implemented under existing statutes by existing federal and state agencies.Parts II and III of this article will review the history of United States ocean policy. Over the last twenty years, there has been an extraordinary growth of federal and state marine-related programs for research, management, and protection. This rapid growth has, however, been haphazard. Laws have been enacted and policies established in response to different crises and varied constituency concerns. The management and policy framework is oriented to a single purpose and often without consideration of the close interconnections between multiple offshore uses and resources.These practices have led to criticism that the United States has no ocean policy. Obviously, this is not accurate. We have a "myriad of statutes that authorize scores of programs which are administered by numerous departments and agencies. . . . " The problem has been, and still is, that we have no comprehensive ocean policy.There has been no coordinating theme to our marine-related programs, plans, and activities. There has been no theory or model that requires those in government and those conducting ocean activities to consider the collective, cumulative, and sometimes conflicting impacts of the separate rules, policies, and actions that are focused on particular uses of the ocean space.Such a coordinating theme now exists. It is the ecosystem management model. In Parts IV and V of this article, I will describe the evolution of this comprehensive approach into a binding rule of international law. As a result of scientific consensus, scholarly writings, nation-state practice, and international agreements and resolutions, international law now requires an ecosystem-based integrated approach to ocean research, planning, management, and policy. This mandate has been codified in the United Nations Convention on the Law of the Sea (UNCLOS).Part VI will then discuss the impact of the ecosystem model on United States ocean policy. Customary international law is part of our domestic law, unless specifically overridden by domestic law. Thus, the model, requiring a comprehensive approach to ocean management and policy, is binding on federal and state government officials. In implementing the numerous federal and state laws and regulations applying to the coastal and ocean space, government officials must exercise their discretion, jointly if necessary, to reconcile their mandates with an integrated ecosystem model. Failure to do so is a violation of federal law and redressable in the courts.The final part of this article will demonstrate how that reconciliation can occur. Old coordinating mechanisms must be strengthened and new ones created. Interested citizens must be willing to seek judicial relief for insufficient administrative action. Funding must be made available, as necessary, to insure adequate planning and coordination of policy. Martin H. Belsky Environmental Law http://works.bepress.com/martin_belsky/50 http://works.bepress.com/martin_belsky/50 Mon, 03 Mar 2008 15:39:45 PST It is my pleasure to welcome you to the first of four issues of Volume 33 of the Tulsa Law Journal celebrating the 75th Anniversary of the University of Tulsa College of Law. Martin H. Belsky Jurisprudence http://works.bepress.com/martin_belsky/49 http://works.bepress.com/martin_belsky/49 Mon, 03 Mar 2008 15:33:13 PST Congratulations to all the past and present editors and staff members of the Tulsa Journal of Comparative and International Law for reaching your 10th Anniversary. Martin H. Belsky Legal Education http://works.bepress.com/martin_belsky/48 http://works.bepress.com/martin_belsky/48 Mon, 03 Mar 2008 15:27:33 PST A prosecutor is a detective, a litigator, a manager, and a policymaker. He is responsible for investigating illegalities' and is permitted to use specially assigned tools-a grand jury or subpoena-to acquire information and evidence. As a litigator, he is counsel for an artificial client-the government or people-but also the representa- tive of identifiable victims. Moreover, though he functions in an adversary system, he must temper his advocacy and zeal. His goal is not merely to "win," but also to see that "justice is done."The prosecutor must manage an increasing set of responsibilities in a complex and often arbitrary system, and therefore must balance twin goals of efficiency and success. Finally, as a policymaker, she must make choices concerning both what laws to enforce and how to enforce them. Her power to make those choices is almost unfettered.A thorough analysis of this difficult mixture of roles, responsibilities, and skills would be quite valuable. Such a general text on "The Prosecution Function" would assist in the training of new prosecutors and increase recognition of the prosecutorial perspective by the legal profession and the public.Hoping for such an examination, one approaches "The Prosecution Function" by David M. Nissman and Ed Hagen with both expectation and concern. Will the two assistant district attorneys turned authors explore the special obligations and attitudes of the prosecutor? Will they allow their biases to taint their analysis? Will they reveal the broad scope and nature of the prosecution function? Will they lead the reader to see the need for better training and for increased reflection about the prosecutor? Nissman and Hagen's text provides responses to these questions that highlight the problems of becoming and being a prosecutor. Most lawyers, including judges and prosecutors, define the prosecutorial role narrowly and analyze it in terms of the day-to-day courtroom combat. The public perceives the prosecutor as its legal representative in the "war against crime" and seldom, if ever, goes beyond that vision to look at her role as part of a larger and extremely troubled justice system. Students and new prosecutors, in turn, absorb these perspectives and seek training as "courtroom torpedoes," fighting to win a war against wrongdoers.This review essay first presents Nissman and Hagen's view of the prosecutorial world as expressed in their text. Their view is limited in that it focuses on the local district attorney in the courtroom. The second section of this essay considers the extent to which Nissman and Hagen succeed in detailing and exploring that circumscribed perspective. This reviewer concludes that, while the text gives helpful guidance on selected prosecutorial functions and techniques, it is deficient in that it chooses too few areas of courtroom activity for analysis, and fails to describe the environment in which a prosecutor works. Moreover, the text misses an opportunity to convey to a young prosecutor the need for ethical sensitivity in his day-to-day actions.This essay then critiques the authors' premise that a "clinical law" teaching text, or a "how to" book for students and new prosecutors should not delve into matters of policy. As this essay demonstrates, the authors' view is misdirected. Clinical and other students and young prosecutors could use a more thorough text in order to put the prosecutor's quasi-judicial role in its proper context.Finally, this essay suggests the need for a broader prosecutorial sourcebook. The essay offers a proposed format that will increase the value of such a book to students, attorneys, and interested citizens. Martin H. Belsky Jurisprudence