Ryan Alford | Lakehead University (original) (raw)

Papers by Ryan Alford

School of Law. Special thanks to my research assistants Jason Gardner and Peter Schofield, and to... more School of Law. Special thanks to my research assistants Jason Gardner and Peter Schofield, and to the staff of Ave Maria School of Law Library for their able and diligent assistance. Thanks also to the organizers and presenters at the 2012 Southeastern Law Scholars Conference and the 11th Circuit Legal Scholars Forums for their valuable feedback on an early draft of this Article. 1. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963).

This article assesses the context and content of Bill C-59's proposed revisions to the Anti-t... more This article assesses the context and content of Bill C-59's proposed revisions to the Anti-terrorism Act, 2015 (the former Bill C-51), which created a controversial warrant-based regime for authorizing CSIS activity that would otherwise violate the Charter. These amendments have been introduced in Parliament and are currently being debated in the House of Commons. Bill C-59, the product of a fatally-flawed public consultation process, addresses the possibility that this warrant regime might lead to serious abuses in two ways. First, it creates an oversight body (the National Security Intelligence Review Agency), which will supervise these warrant applications and other activities undertaken by the Canadian Security Intelligence Service (“CSIS” or “the Service”) and advise the National Security and Intelligence Committee of Parliamentarians (created by the former Bill C-22). Second, it specifies in further detail what the warrants can and cannot authorize. This article demonstra...

Utah law review, 2011

the rule of law at the crossroads: Consequences of targeted killing of citizens. Ryan Patrick Alf... more the rule of law at the crossroads: Consequences of targeted killing of citizens. Ryan Patrick Alford *. Can the Executive order the assassination of a US Citizen without first affording him any form of judicial process whatsoever ...

SSRN Electronic Journal, 2012

The article discusses the Vesting Clause Theorists' claim that the British constitution of 17... more The article discusses the Vesting Clause Theorists' claim that the British constitution of 1787 can be considered the baseline against which the Framers defined the "executive power" granted by Article II of the Constitution of the United States. While this is the best argument still remaining for the conception of broad presidential powers that they advance, it is profoundly misguided, as it necessarily relies upon a fatal misunderstanding of seventeenth and eighteenth century English (and British) constitutional history.It details that the monarchy had lost the powers the vesting clause theorists posit to be the model for the president’s long before the framing, owing to the movement towards parliamentary supremacy and the creation of a cabinet responsible to Parliament. As the article shows, this was clear to the revolutionary generation, who accordingly could not have believed that royal powers could serve as a useful baseline for those of a president. More importantly, it demonstrates how this process of constitutional change in eighteenth century Britain destabilized the notion of executive power, such that there was no undisputed, commonsensical definition: executive power was an essentially contested concept by 1787. The article posits further that to understand the original scope of presidential powers, one must grasp that the key feature of American political thought during the American Revolution was that it was a reaction against developments in eighteenth century British constitutional theory. The Founding Fathers drew deeply from seventeenth century constitutionalism, inheriting a deep distrust of strong executive powers. The article's historical analysis demonstrates that the arguments of Vesting Clause Theorists (such as John Yoo) resemble the defenders of absolutism that the Framers' abhorred, and are therefore in many significant respects antithetical to the fundamental political ideals that defined the intellectual context of the framing.

Social Science Research Network, Mar 15, 2017

Revue nationale de droit constitutionnel, 2016

This article demonstrates that the Anti-Terrorism Act of 2015 (formerly Bill C-51, “the Act”) is ... more This article demonstrates that the Anti-Terrorism Act of 2015 (formerly Bill C-51, “the Act”) is unconstitutional, in violation of Canada’s international obligations, and incompatible with the minimum norms of the rule of law. The amendments to the CSIS Act allow the Canadian Securities Intelligence Service to apply for warrants authorizing the violation of non-derogable rights, including the right not to be subjected to indefinite arbitrary detention.The Act grants the government emergency detention powers that are considerably broader than those it possesses pursuant to the Emergencies Act (or that it possessed under the War Measures Act). The United Nations Human Rights Committee (the “UNHRC”) has already opined on the tension between the Act and Canada’s obligations under the International Convention on Civil and Political Rights (the “ICCPR”) which establishes that certain rights are nonderogable even during public emergencies. The Act does not recognize this category of peremp...

Author: Richard K. SherwinPublisher: University of Chicago PressYear: 2000 Life today resembles a... more Author: Richard K. SherwinPublisher: University of Chicago PressYear: 2000 Life today resembles a fictional paradigm more and more and sometimes even outdoes the movie version. O. J. Simpson’s ride in a white Bronco might well have been an improbable episode on a television cop series; the televised Simpson and Menendez trials so convincingly melded the forms of [the popular television programs] "L.A. Law," "All My Children," and Oprah" that talk show and soap opera ratings fell off.(Goldberg, 1997, §2, p. 1)

The Socratic method is considered obsolete and unhelpful by many legal educators. Catalyzed by th... more The Socratic method is considered obsolete and unhelpful by many legal educators. Catalyzed by the latest report of the Carnegie Foundation on legal education, educational reformers are pushing for the reduction or elimination of its use. This paper presents a historical perspective on the importance of the Socratic method to the development of law and to its continuity across time. It highlights the importance of the method in imparting Aristotelian epistemology and scholastic modes of reasoning that are increasingly rare in society at large, but which are critical to the structure and spirit of the law. Accordingly, it is argued that it is impossible to predict with confidence that the demise of the Socratic method would not destroy our hermeneutic bridge to the era in which foundational concepts of law were elaborated, or even destroy our ability to understand them. This perspective should give us pause when we consider making changes to a tradition with a value that we do not al...

When Law Goes Pop is the first book-length appraisal of the impact of the portrayal of the crimin... more When Law Goes Pop is the first book-length appraisal of the impact of the portrayal of the criminal justice system on the legal system itself written by a legal theorist. Sherwin encourages readers to consider the long-term consequences of this relationship, in particular the creation of a culture of skeptical postmodernism, which has a corrosive effect on the criminal justice system. The author is well aware of the width and breadth of the connection between the two fields, and his knowledge of both postmodern philosophical theory and law yields great insight into the problems he discusses.

Oklahoma law review, 2008

This article argues that higher scrutiny of claims of argumentative misconduct in prosecutors&#39... more This article argues that higher scrutiny of claims of argumentative misconduct in prosecutors' closing arguments is warranted in the context of federal habeas review of state criminal trials. The current standard against which these claims are reviewed is unduly convoluted and subjective. Furthermore, habeas review is essential where state courts lack institutional competence to address the misconduct at issue, as the article demonstrates. The proposal is to realign the test for unduly inflammatory summations with the test applied to prejudicial pretrial publicity, as persuasion theory demonstrates that these phenomena have similar effects.

The article offers a historical perspective on a growing threat to the rule of law from inside le... more The article offers a historical perspective on a growing threat to the rule of law from inside legal education. His contribution demonstrates that the modern legal academy's disdain for this foundational concept explained in no small part by a key obstacle in its path to ideological hegemony in legal thought: in order to reshape the law in the image of its own instrumentalism, it must eradicate the intimate knowledge and attachment to constitutional history that has always engendered great respect for the rule of law in the Canadian bench and bar.

Social Science Research Network, 2018

Economic Inequality & the Law eJournal, 2006

This article addresses the question of the appropriate response of appellate counsel for Black de... more This article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect rhetorical deployment of powerful racial stereotypes. The crux of the problem is that courts typically only take exception to blantantly racist appeals, even though implicitly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric (or persuasion through oration) to describe various techniques of intentional indirectness that prosecutors have used to obviate the possibility of effective appellate review of racist argumentation, especially under the stringent standards of the Fourteenth Amendment.

American scholars of legal rhetoric have taken a position on the disconnectedness between normati... more American scholars of legal rhetoric have taken a position on the disconnectedness between normative legal theory and legal practice, particularly the practice of forensic oratory, which must be addressed before pragma-dialectical argumentation theorists can move forward to concrete and constructive engagement with American legal theorists. This engagement could provide benefits and insights to both parties, espcially because of the structural similarity between the prescriptive dimension of dialectical argumentation theory and the procedural norms of the common law. In particular, pragma-dialectical argumentation theory might prove helpful to jurists seeking a more effective approach to the 'harmless error analysis' of courtroom argumentation.

The Government of Canada presently possesses the power to commit Canadian soldiers to battle with... more The Government of Canada presently possesses the power to commit Canadian soldiers to battle without Parliamentary approval. On this basis, troops were deployed to Northern Iraq after a brief debate inaugurated by a non-binding take note motion presented in the House of Commons. This article notes that this power is anomalous in the era of responsible government, and argues that it should be reconsidered in the light of recent changes to the constitutional order of the United Kingdom.The article describes the constitutional convention created in the United Kingdom in 2012. This requires the Government to abide with the results of a vote in the House of Commons on the deployment. This article argues that the adoption of the convention was not a response to abstract concerns about the balance of powers. Rather, it was deemed be politically necessary owing the revelations about the Blair Government’s abuse of the royal prerogative.The article further argues that the same incentives for...

Trends in Organized Crime, 2005

The 1998 government-initiated civil-RICO suit and court-enforced agreement to purge the Internati... more The 1998 government-initiated civil-RICO suit and court-enforced agreement to purge the International Brotherhood of Teamsters (IBT) of organized crime's presence and influence will stand as an important chapter in America's labor history as well as law enforcement history. The remedial phase, now in its sixteenth year, is one of the most ambitious insitutional law reform efforts, since it involves the nation's largest private sector union and its most powerful organized crime syndicate. So far, the suit has transformed the IBT's system for electing international union officers, led to the suspension or expulsion of approximately 500 IBT officers, and produced several dozen IBT international union trusteeships over organized-crime influenced locals. It also spawned Project RISE, an IBT-initiated anti-racketeering program meant to persuade the U.S. Department of Justice that union is ready, willing, and able to police itself, thereby rendering unnecessarythe continued monitoring by means of the Independent Review Board (IRB) established by the settlement of the 1988 RICO suit. This article seeks to make Project RISE's brief but extraordinary history available to scholars and policymakers concerned with labor racketeering, organized crime control, and the IBT itself. It also seeks to shed light on whether Project RISE should be seen as a model for for future organizational reform initiatives, or on the contrary, as proof that racketeer-ridden unions and other organizations cannot be expected or trusted to reform themselves. Part I reviews the history of the civil RICO litigation that eventually led to Project RISE. Part II describes the organization and operation of Project RISE. Part III chronicles and explains the demise of Project RISE. Part IV identifies Project RISE's accomplishments and failures.

Scholars of human rights and constitutional law have described in great detail the abuses perpetr... more Scholars of human rights and constitutional law have described in great detail the abuses perpetrated by the armed forces and secret services of the United States in the context of the ‘war on terror’. There is copious literature explaining why these violations of fundamental human rights are not justifiable, and why they are not consistent with international treaties or that nation’s constitution. This thesis builds upon this research, but strikes out in a new direction. It does so by asking whether these abuses, combined with the changes to the legal order of the United States that made them possible, have produced a qualitative transformation of its constitutional structure. In particular, this thesis tracks the empowering of the executive. Increasingly, whenever it purports to act in the interests of national security, the executive claims the authority to act unilaterally in a manner that overrides even non-derogable rights. These novel constitutional reserve powers, which this...