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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 …