Mitten on International Sports Arbitration

Matt Mitten has a new article on SSRN, Judicial Review of Olympic and International Sports Arbitration Awards: Trends and Observations.  The article focuses on the review of decisions by the Court of Arbitration for Sport, of which Matt is a member.  Here is the abstract:

This article provides an overview of the nature and scope of judicial review of Olympic and international sports arbitration awards, primarily those rendered by the Court of Arbitration for Sport (based in Lausanne, Switzerland) and their review by the Swiss Federal Tribunal pursuant to the Swiss Federal Code on Private International Law. It also describes and compares U.S. courts’ review of international sports arbitration awards pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards as well as domestic sports arbitration awards. Both Swiss and U.S. courts are permitting CAS arbitration awards to establish a developing body of private international sports law that displaces national laws. The author concludes that this is the appropriate jurisprudential view because it is necessary to have universally accepted legal rules and dispute resolution processes for Olympic and international athletic competition, and for the governance of global sports competition to be fair and equitable on a worldwide basis.

The article is forthcoming in the Pepperdine Dispute Resolution Journal. 

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Dahmer and the Insanity Defense

Greg O’Meara has a new article on SSRN about the trial of Jeffrey Dahmer, “He Speaks Not, Yet He Says Everything; What of That?”  Text, Context, and Pretext in State v. Jeffrey Dahmer.  As part of the prosecution team in Dahmer, Greg has a unique perspective on the trial.  In dissecting the strategies used by both sides in litigating Dahmer’s sanity, Greg draws on a treasure trove of documents from the prosecution’s case file, as well as the work of Sigmund Freud, Paul Ricoeur, and others.  This paper is sure to become an indispensible resource for anyone studying the Dahmer case in the future.  Here is the abstract:

In State v. Dahmer, the defense attempted to lead the jury through a series of inferences to conclude that the defendant was insane at the time he committed each of the fifteen murders charged; it portrayed a client who was fully cooperative and honest once the authorities arrested him. To make this approach work, the defense needed narrative distance between the defendant and the jury so he could not be cross examined about his meticulous planning of each murder or his prior inconsistent statements. This paper briefly lays out the development of the defense of insanity, focusing on the different professional aims of law and psychiatry. It then fleshes out how this tension emerged during the Dahmer trial and analyzes how the attorneys attempted to exploit it in terms of Paul Ricoeur’s narrative theory. It concludes that the defense was ultimately unsuccessful because it failed to give the jury an adequate context for understanding a life both as ordinary and complex as Dahmer’s.

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Seventh Circuit Criminal Case of the Week: Doing the Interrogation Two-Step

As all law students (and viewers of crime dramas) know, an incriminating statement generally cannot be used against a defendant if the defendant was not given the basic Miranda warnings before the statement was elicited by police.  But what if the defendant gives a second, warned statement after a first, unwarned statement?  In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court seemed to give a green light to the use of such statements.  More recently, though, the Court ruled that a second statement was not admissible in Missouri v. Seibert, 542 U.S. 600 (2004), in which police officers deliberately employed a two-step interrogation technique in order to minimize the effectiveness of the Miranda warnings. 

The trouble is that no single opinion drew a majority in Seibert.  A plurality opinion adopted a multifactor test for two-step interrogations, in which the reviewing court would determine whether a “reasonable person in the suspect’s shoes” would have understood that it was possible to refuse further questioning after the Miranda warnings were given.  Meanwhile, Justice Kennedy, providing the crucial fifth vote for the Court’s holding, wrote separately and advocated a different test that focused on whether the police were deliberately circumventing Miranda.  The Seibert split has caused continuing confusion in the lower courts.  (As Jon Deitrich observed in a post earlier today, Justice Scalia recently saved the Supreme Court from a similarly divided result in Arizona v. Gant.)

The Seventh Circuit had an opportunity to choose between the plurality and Kennedy approaches in its opinion last week in United States v. Heron (No. 07-3726). 

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