Law Commons^™

The Courtroom Technology Wars Are Here!, Fredric I. Lederer

Popular Media

No abstract provided.

Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy

Law Faculty Scholarly Articles

Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now …

Now You See It, Now You Don't: Depublication And Nonpublication Of Opinions Raise Motive Questions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The basis for these comments is a decision last year by the Eighth Circuit Court of Appeals in Anastasoff v. United States. The court held that an Eighth Circuit local rule, which authorized nonpublication of opinions and explicitly stated that unpublished opinions were to have no precedential effect, was unconstitutional. The panel, in an opinion by Judge Richard S. Arnold, reasoned that a court rule purporting to confer upon appellate judges an absolute power to decide which decisions would be binding and which would not be binding went well beyond the “judicial power” within the meaning of Article III of …

Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff

Cornell Law Faculty Publications

The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court's decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does not …

Judicial Nomination And Confirmation Process: Hearing Before The S. Comm. On The Judiciary, 107th Cong., Sept. 4, 2001 (Statement Of Mark V. Tushnet, Prof. Of Law, Geo. U. L. Center), Mark V. Tushnet

Testimony Before Congress

No abstract provided.

Picking Federal Judges: A Note On Policy And Partisan Selection Agendas, Micheal W. Giles, Virginia A. Hettinger, Todd C. Peppers

Scholarly Articles

The importance of lower federal courts in the policymaking process has stimulated extensive research programs focused on the process of selecting the judges of these courts and the factors influencing their decisions. The present study employs judicial decisionmaking in the U.S. Courts of Appeals as a window through which to reexamine the politics of selection to the lower courts. It differs from previous studies of selection in three ways. First, it takes advantage of recent innovations in measurement to go beyond reliance on political party as a measure of the preferences of actors in the selection process. Second, employing these …

Citizen Participation In Judicial Decision Making: Juries, Lay Judges And Japan, Richard O. Lempert

Articles

In the late 1920s and 1930s Japan had a jury system. It was suspended in 1943 as a wartime measure, but it had fallen into desuetude long before that. Arguably it was like the Spanish jury, which has several times risen during periods of relative political liberalism or populism and been suppressed during periods of militarism and autocracy. That is, it may be more than a coincidence that use of the Japanese jury fell precipitously during the 1930s as militarism took hold of the Japanese nation. Now the reinstatement of the Japanese jury is again being seriously considered. Similarly it …

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …

Listing And Delisting Processes Under The Endangered Species Act: Hearing Before The S. Subcomm. On Fisheries, Wildlife And Water, 107th Cong., May 9, 2001 (Statement Of John D. Echeverria, Dir. Environmental Policy Project, Geo. U. L. Center), John D. Echeverria

Testimony Before Congress

No abstract provided.

After Steel Co.: 'Hypothetical Jurisdiction' In The Federal Appellate Courts, Joan E. Steinman

All Faculty Scholarship

In Steel Co. v. Citizens for a Better Environment, the United States Supreme Court, sua sponte, denounced the doctrine of "hypothetical jurisdiction," a doctrine that, in some circumstances, allowed courts to assume, arguendo, the existence of jurisdiction and to address the merit questions presented by cases. Several of the Justices distanced themselves from the denunciation, however, and despite the vociferousness of the position taken by the majority, even it found that there were exceptional circumstances in which the Court had acted properly (and presumably in which other courts would act appropriately) in assuming jurisdiction arguendo and addressing merits questions. The …

Court Administration As A Tool For Judicial Reform, Christie Warren

Faculty Publications

This paper focuses on court administration as a component of judicial branch reform in the United States and other countries.

Over the past fifty years, state and federal court systems in the United States have undergone a process of significant change. At the beginning of the twentieth century, courts were largely dependent upon the executive branch of government for administrative support and were for the most part externally dominated, disorganized, and poorly managed. By the end of the century, they had undergone a process of administrative innovation and improvement that changed the way they were managed. In other countries, judicial …

The Judiciary In The United States: A Search For Fairness, Independence And Competence, Stephen J. Shapiro

All Faculty Scholarship

Alexander Hamilton referred to the judiciary as “the least dangerous branch” because it could neither make nor enforce the law without help from the other two branches of government. In the years since then, however, courts and judges in the United States have assumed a much more prominent role in society. American judges preside over criminal trials and sentence those convicted, decide all kinds of civil disputes, both large and small, and make important decisions involving families, such as child custody. They have also become the primary guarantors of the civil and constitutional rights of American citizens.

The case of …

Antitrust And The Information Age: Section 2 Monopolization Analyses In The New Economy, A. Benjamin Spencer

Faculty Publications

On April 3, 2000, U.S. District Judge Thomas Penfield Jackson declared that the Microsoft Corporation ("Microsoft") had maintained monopoly power in the personal computer operating system market by anticompetitive means, in violation of Section 2 of the Sherman Antitrust Act. A case of enormous significance, Microsoft raises difficult questions regarding how antitrust laws should be applied to information technology ("IT') companies. Specifically, many characteristics of what has come to be called the "New Economy" - and of the IT companies within it - suggest that traditional monopolization analysis may need modification. As the U.S. has moved toward an information- based …

Outrageous Opponents: How To Stop Them In Closing Argument, Ronald L. Carlson, Michael S. Carlson

Popular Media

Most attorneys try to sum up their cases in a fashion that comports with accepted law and local practice. All too frequently, however, one has the misfortune of running into Rambo, the over-the-top opponent. Before his peroration is concluded, Rambo has trampled on the law of trial practice by making half a dozen improper arguments. He urges evidence that never came up at trial. He injects hearsay into the proceedings. He adds his own opinions about which witnesses were lying and the legal fault of your client. And, this is just the beginning. Adding insult to injury, the unjust tactics …

Laidlaw: Redressing The Law Of Redressability, Harold J. Krent

All Faculty Scholarship

No abstract provided.

Juries And Technology: Equipping Jurors For The Twenty-First Century (Symposium), Nancy S. Marder

All Faculty Scholarship

No abstract provided.

Convicting The Innocent Beyond A Reasonable Doubt: Some Lessons About Jury Instructions From The Sheppard Case, Lawrence Solan

Faculty Scholarship

No abstract provided.

Remarks Delivered By Videotape For Ceremonies Celebrating Howard Munson's 25th Year As A Federal Judge, Roger J. Miner '56

Tributes & Testimonials

No abstract provided.

Book #23, Roger J. Miner '56

Scrapbooks

No abstract provided.

Charles Alan Wright And The Fragmentation Of Federal Practice And Procedure, Carl W. Tobias

Law Faculty Publications

Memorial tribute to Professor Charles Alan Wright.

Divisional Arrangement For The Federal Appeals Courts, Carl W. Tobias

Law Faculty Publications

The 106th Congress seriously considered proposed legislation that could profoundly affect the federal appellate courts, and the 107th Congress may well do so. The Commission on Structural Alternatives for the Federal Courts of Appeals, which performed a rather comprehensive, albeit incomplete, study of the tribunals, recommended this bill as the centerpiece of its report for Congress. The commissioners prescribed regionally-based adjudicative divisions for the United States Court of Appeals for the Ninth Circuit and for the remaining appellate courts when the courts increase in size, even as the commission decisively rejected the possibility of splitting the Ninth Circuit into multiple …

The Written Contract As Safe Harbor For Dishonest Conduct, Lawrence Solan

Faculty Scholarship

No abstract provided.

Kathleen G. Arnovick, Valerie L. Cox, Henry B. Wansker V. Respondent : Brief Of Respondent, Utah Supreme Court

Utah Supreme Court Briefs (2000– )

On Appeal from the Findings of Fact and Final Determination of the Executive Committee of the Utah State Bar

Rhn Corporation, A Utah Corporation V. J. Alton Veibell And Willow Creek Water Company. C.C., A Utah Limited Liability Company: Reply Brief, Utah Supreme Court

Utah Supreme Court Briefs (2000– )

APPEAL FROM A FINAL ORDER AND JUDGEMENT OF THE FIRST JUDICIAL DISTRICT COURT OF BOX ELDER, UTAH HONORABLE Judge Ben Hadfield DATE OF ORDER April 13, 2001 Case No. 980100719

Managing Punitive Damages: A Role For Mandatory "Limited Generosity" Classes And Anti-Suit Injunctions?, Joan E. Steinman

All Faculty Scholarship

In this Article, I consider whether "limited generosity" classes may be used to determine a defendant's entire liability for punitive damages arising from a defined course of conduct. The goals of such a class action would include adequately punishing and deterring the defendant, keeping the defendant's liability within state-mandated and constitutional limits, and facilitating equitable distribution of the damages among injured plaintiffs. The Article describes the legal limits on punitive damages liability that states have established and that the Supreme Court has held substantive due process to impose, and then carefully examines whether such limits constitute a predicate for mandatory …

International Immunities: Some Dissident Views On The Role Of Municipal Courts, Charles H. Brower Ii

Law Faculty Research Publications

No abstract provided.

October Term: 1999: The Supreme Court's Last Term Of The Twentieth Century, Increasing Deference To Administrative Agencies, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Pac, Christina E. Wells

Faculty Publications

This essay, however, is less concerned with the campaign finance aspects of Shrink than with the decision's broader implications. In the course of its decision, the Shrink Court not only obfuscated the standard of scrutiny applicable to contribution regulations, it effectively ignored the government's lack of factual support for the law, instead accepting the state's assertions at face-value. Consequently, Shrink is far more than a simple application of Buckley. Rather, it reflects fundamental problems with the Court's standards of review in First Amendment cases generally. The more global nature of Shrink's problems suggest that, despite scholarly focus on the Buckley …

Two Cheers For Process Federalism, Ernest A. Young

Faculty Scholarship

No abstract provided.

Court Fixing, Tracey E. George

Vanderbilt Law School Faculty Publications

This Article critically examines the existing social science evidence on the relative importance of various individual factors on judicial behavior and adds to that evidence by considering the influence of prior academic experience on judges. Researchers have not focused much attention on the importance of a judge's background as a full-time law professor and legal scholar, although more than thirteen percent of courts of appeals appointees were former law professors. Franklin Roosevelt and Ronald Reagan both viewed the federal judiciary (particularly the Supreme Court and the Courts of Appeals) as integral to their policy agendas, and both further believed that …