Law Commons^™

Changing The Narrative: Convincing Courts To Distinguish Between Misbehavior And Criminal Conduct In School Referral Cases, Marsha L. Levick, Robert G. Schwartz

University of the District of Columbia Law Review

No abstract provided.

Xenophilia Or Xenophobia In American Courts? Before And After 9/11, Kevin M. Clermont, Theodore Eisenberg

Cornell Law Faculty Publications

This article revisits the controversy regarding how foreigners fare in U.S. courts. The available data, if taken in a sufficiently big sample from numerous case categories and a range of years, indicate that foreigners have fared better in the federal courts than their domestic counterparts have fared. Thus, the data offer no support for the existence of xenophobic bias in U.S. courts. Nor do they establish xenophilia, of course. What the data do show is that case selection drives the outcomes for foreigners. Foreigners' aversion to U.S. forums can elevate the foreigners' success rates, when measured as a percentage of …

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

Slides: What's In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: James R. Rasband, J. Reuben Clark Law School, Brigham Young University

23 slides

Slides: Meaningful Engagement: The Public's Role In Resource Decisions, Mark Squillace

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mark Squillace, Director, Natural Resources Law Center, University of Colorado Law School

22 slides

What’S In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

14 pages.

Includes bibliographical references

"James R. Rasband, Associate Dean of Research & Academic Affairs and Professor of Law, J. Reuben Clark Law School, Brigham Young University"

Habermas, Legal Legitimacy, And Creative Cost Awards In Recent Canadian Jurisprudence, Michael Fenrick

Dalhousie Law Journal

Access to justice continues to be a live issue in Canadian courtrooms. While state-sponsored initiatives that promote access continue to flounder in Canada or in some cases, are cancelled altogether, the pressure is mounting to find creative solutions that facilitate greater participation in formal dispute resolution processes. The price of failing in this regard is very high. To truly flourish, both social cohesion and individual liberties require a more participatory and inclusive legal system than the one that currently precludes all but the wealthiest from accessing our courts. Drawing on the legal philosophy of Jargen Habermas, the author examines access …

Promissory Estoppel, Proprietary Estoppel And Constructive Trust In Canada: "What's In A Name?", Jane Matthews Glenn

Dalhousie Law Journal

This paper explores the similarities and differences between promissory estoppel, proprietary estoppel and the remedial constructive trust. Although the three are quite different at one level, as the first is a defence to an action, the second a cause of action as well as a defence, and the third simply a remedy to a cause of action, a closer examination reveals certain underlying similarities. The comparison highlights proprietary estoppel, an oft-overlooked concept in Canada, but which is comparable to promissory estoppel at the substantive level and the constructive trust at the remedial level.

Complete Preemption And The Separation Of Powers, Trevor W. Morrison

Cornell Law Faculty Publications

This is a short response, published in Pennumbra (the online companion to the University of Pennsylvania Law Review), to Gil Seinfeld's recent article, "The Puzzle of Complete Preemption."

I first sound some notes of agreement with Professor Seinfeld's critique of the Supreme Court's complete preemption doctrine. I then turn to his proposed reshaping of the doctrine around the interest in federal legal uniformity. Although certainly more satisfying than the Court's account, Professor Seinfeld's refashioning of the doctrine raises a number of new difficulties. In particular, it invites the federal courts to engage in a range of line-drawing exercises to which …

Below The Surface: Comparing Legislative History Usage By The House Of Lords And The Supreme Court, James J. Brudney

ExpressO

Abstract for “Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain’s highest court has used …

'Prima Paint' Pushed Compulsory Aribitration Under The 'Erie' Train, Richard L. Barnes

ExpressO

As the face of commerce changes, the law usually follows, albeit at some distance. The United States Supreme Court has recently sped the pace. In a line of cases, some old, some recent, but all feeding off of one another, the Court has held that challenges to agreements which contain arbitration provisions must go to the arbitrator first. Courts may hear formational challenges only where they challenge the arbitration provision alone. In the Supreme Court, arbitration, with its vast potential for abuse as well as for good, has found a friend.

The Court’s doctrine of choice, “severability,” raises serious concerns …

The New Federal Indian Law, Matthew L.M. Fletcher

ExpressO

Is federal Indian law dead? Despite a declining docket during the Rehnquist Court, the Supreme Court continued to take a disproportionately high number of Indian law cases – and deciding more than 75 percent of them against tribal interests. While many scholars suggest that the Court’s conservative views drive these Indian law decisions and criticize the Court for failing to follow foundational principles of federal Indian law, this Article asserts that the Court’s reasons for granting certiorari and for deciding against tribal interests in these cases are not Indian law-related. Instead, the Court identifies important, unrelated constitutional concerns that appear …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

23(B)(2) Class Certification: Choosing An Approach For Certifying Civil Rights Discrimination Class Action Suits, James T. Tsai

ExpressO

The passage of the 1991 amendments to the Civil Rights Act granted injunctive as well as monetary damages for impermissible discrimination in the workplace. The Act also created a tension with the last revision of the Federal Rules of Civil Procedure in 1966. This revision prohibits the certification of a class under Rule 23(b)(2) if the damages sought are predominantly monetary in nature. On one end of this resulting tension is the desire to protect individuals rights to “opt-out” of a class action suit and maintain future individual actions. On the other end is the desire for judicial economy and …

Claim Construction, Appeal, And The Predictability Of Interpretive Regimes, Jeffrey A. Lefstin

ExpressO

Interpretation is central to patent law, because most adjudications require association of written claims with non-linguistic subject matter. By some accounts, the lack of predictability in the law of claim interpretation has reached crisis proportions, and has prompted calls for far-reaching changes in the way patent issues are adjudicated. However, the actual evidence that questions of interpretation are more problematic than other aspects of patent law is sparser than is commonly recognized. Moreover, while the controversy over claim interpretation centers around the predictability of interpretation between trial and appeal, what is important is to be able to predict outcomes before …

The View From The Trenches: A Report On The Breakout Sessions At The 2005 National Conference On Appellate Justice, Arthur Hellman

ExpressO

In November 2005, four prominent legal organizations sponsored the second National Conference on Appellate Justice. One purpose was to take a fresh look at the operation of appellate courts 30 years after the first National Conference. As part of the 2005 Conference, small groups of judges and lawyers gathered in breakout sessions to discuss specific issues about the operation of the appellate system. This article summarizes and synthesizes the participants’ comments. The article is organized around three major topics, each of which builds on a different contrast with the 1975 conference.

First, the participants in the earlier conference apparently assumed …

A Report On Chicago's Felony Courts: Executive Summary (Chicago Appleseed Fund For Justice Criminal Justice Project, December 2007) (Member Of Advisory Board), Daniel T. Coyne

All Faculty Scholarship

No abstract provided.

A Report On Chicago's Felony Courts (Chicago Appleseed Fund For Justice Criminal Justice Project, December 2007) (Member Of Advisory Board)., Daniel T. Coyne

All Faculty Scholarship

No abstract provided.

El Desarrollo Del Arbitraje Comercial Internacional: Sofisticacion O Complejdad, Horacio A. Grigera Naón

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Early Panel Announcement, Settlement And Adjudication, Samuel P. Jordan

All Faculty Scholarship

Federal appellate courts have significant discretion to set the internal policies that govern the appeals process, and they have used that discretion to institute policies designed to combat increasing caseloads. This Article takes a close look at one such policy: early announcement of panel composition in the D.C. Circuit Court of Appeals. In stark contrast to every other circuit, the D.C. Circuit announces panel composition to litigants in civil appeals well in advance of oral argument, and it does so at least in part to encourage settlement and control the court's workload. This Article concludes that although there are indications …

Amicus Briefs, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Promissory Estoppel: The Life History Of An Ideal Legal Transplant, Joel M. Ngugi

University of Richmond Law Review

This article hopes to accomplish three things. First, it will revisit the historical origins of the doctrine of promissory estoppel in the American law of contracts and the role that Samuel Williston, the Chief Reporter of the Restatement (First) of Contracts ("First Restatement") played in the evolution of the doctrine. The dominant theory is that Williston conceptualized the new promissory estoppel doctrine in a way that retarded and blunted the doctrine shortly after its birth. This theory is adhered to by both critics and proponents of the expansion of promissory estoppel as a ground of promissory obligation. According to both …

Eliminating The Judicial Function In Consumer Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

The centerpiece of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 has been the means test, a formulaic statutory directive pursuant to which courts are to presume abuse of the bankruptcy system by Chapter 7 debtors who have an ability to repay past debts with future income. This Essay provides a new insight into means testing by arguing that, more than anything else, it has brought about a significant change in the institutional design of bankruptcy courts: namely, the increased blurring of administrative and judicial functions. The Essay concludes that this development should be cause for concern as …

Bound And Gagged: The Peculiar Predicament Of Professional Jurors, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This Article advocates two changes to the law. First, parties should be allowed (but not required) to strike professional jurors for cause in cases involving their expertise without any additional showing of a particular bias toward one side or the other. Second, if such jurors are empanelled, they should not be “gagged.” Rather, they should be free to draw on and share their expertise as are all other jurors. This Article proceeds in four Parts. Part I discusses recent reform efforts that have fundamentally altered the jury system by opening it up to increased numbers of professional jurors. Part II …

Afterthoughts From A "Buzz Killer", Sarah Krakoff

Publications

No abstract provided.

The Effect Of Judicial Expedience On Attorney Fees In Class Actions, Eric Helland, Jonathan Klick

All Faculty Scholarship

Judges facing exogenous constraints on their pecuniary income have an incentive to reduce their workload to increase their private welfare. In the face of an increase in caseload, this incentive will induce judges to attempt to terminate some cases more rapidly. In class action cases, failing to grant an attorney fee request will delay termination. This conflict is likely to lead judges to authorize higher fees as court congestion increases. Using two data sets of class action settlements, we show that attorney fees are significantly and positively related to the congestion level of the court hearing the case.

The Federal Judicial Power And The International Legal Order, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Docketology, District Courts And Doctrine, David A. Hoffman, Alan J. Izenman, Jeffrey Lidicker

All Faculty Scholarship

Empirical legal scholars have traditionally modeled trial court judicial opinion writing by assuming that judges act rationally, seeking to maximize their influence by writing opinions in politically important cases. Support for this hypothesis has reviewed published trial court opinions, finding that civil rights and other "hot" topics are more likely to be explained than purportedly ordinary legal problems involved in resolving social security and commercial law cases. This orthodoxy comforts consumers of legal opinions, because it suggests that they are largely representative of judicial work. To test such views, we collected data from a thousand cases in four different jurisdictions. …

The D'Oh! Of Popular Constiutitonalism, Neal Devins

Faculty Publications

No abstract provided.

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Linda L. Berger

No abstract provided.