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Articles 1 - 30 of 274
Full-Text Articles in Law
Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum
Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum
ExpressO
The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …
The Function Of The Supreme People’S Court Of Regulating Economy——Re-Evaluation Of The Zhongfu Industry Guarantee Case(最高法院规制经济的功能──再评“中福实业公司担保案”), Meng Hou
Hou Meng
No abstract provided.
How The Supreme Court Regulates Economy: Review On Exterior Coordination Cost(最高人民法院如何规制经济──外部协调成本的考察), Meng Hou
Hou Meng
No abstract provided.
An Introduction To Lessigian Thought, Russ Taylor
An Introduction To Lessigian Thought, Russ Taylor
Federal Communications Law Journal
Book Review: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig, New York: Penguin Press, 2004, 306 pages.
A review of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig. Lawrence Lessig is a frequent commentator and prolific writer on media and communications topics. His body of work touches copyright issues, radio spectrum policy, media ownership issues, and legal ownership and control of the physical platforms that deliver broadband content. In this 2004 publication, he focuses on copyright policy. …
Court Review: Volume 40, Issue 3-4 - How Useful Is The New Aggressive Driving Legislation?, Victor E. Flango, Ann L. Keith
Court Review: Volume 40, Issue 3-4 - How Useful Is The New Aggressive Driving Legislation?, Victor E. Flango, Ann L. Keith
Court Review: The Journal of the American Judges Association
Aggressive driving usually refers to a disregard for others on the road and is distinguished from the more extreme “road rage,” which involves violent, criminal acts. Nevertheless, with an 1,800 reported incidents of violent road behavior involving the use of an automobile in the United States in 1996, it is a national problem requiring attention. Aggressive driving is responsible for more than 27,000 fatalities per year as well as over 3,000,000 injuries, costing over $150 billion dollars. A survey of 6,000 drivers by the National Highway Traffic Safety Administration (NHTSA) found that 60% of the drivers interviewed believed that unsafe …
Court Review: Volume 40, Issue 3-4 - Cover
Court Review: Volume 40, Issue 3-4 - Cover
Court Review: The Journal of the American Judges Association
No abstract provided.
Court Review: Volume 40, Issue 3-4 - Table Of Contents
Court Review: Volume 40, Issue 3-4 - Table Of Contents
Court Review: The Journal of the American Judges Association
No abstract provided.
Court Review: Volume 40, Issue 3-4 - Court Gazing: Features Of Diversity In The U.S. Supreme Court Building, Hongxia Liu
Court Review: Volume 40, Issue 3-4 - Court Gazing: Features Of Diversity In The U.S. Supreme Court Building, Hongxia Liu
Court Review: The Journal of the American Judges Association
“Diversity is its strength, just as it is the strength of America itself,” wrote Justice Sandra Day O’Connor about the United States Supreme Court.1 The Court’s strength of diversity is manifested in various ways. To its thousands of visitors, the Supreme Court Building itself is perhaps the first and foremost exhibition of that strength of diversity. In the nation’s highest court, high above the bench, are the figures of 18 historical lawgivers depicted in marble friezes. These 18 lawgivers are of different races and ethnicities, from Hammurabi to Moses to Confucius to John Marshall. They stand parallel, representing diverse legal …
Court Review: Volume 40, Issue 3-4 - Smarter Sentencing: On The Need To Consider Crime Reduction As A Goal, Michael Marcus
Court Review: Volume 40, Issue 3-4 - Smarter Sentencing: On The Need To Consider Crime Reduction As A Goal, Michael Marcus
Court Review: The Journal of the American Judges Association
In February, 2004, Oregon Governor Ted Kulongoski directed a newly created “Public Safety Review Steering Committee” to “look at our public safety system from beginning to end” and to develop “strategies to make the system stronger” wherever it does not sufficiently protect Oregonians. In common with many states, Oregon long ago adopted a modification of the penal code to declare crime reduction among the purposes of sentencing. And in common with many states, Oregon has adopted a sentencing guidelines model that roughly directs sentencing to reflect crime seriousness, criminal history, and prison resources—largely or entirely ignoring crime reduction. Apparently in …
Court Review: Volume 40, Issue 3-4 - Racial And Ethnic Bias In The Courts: Impressions From Public Hearings, Elizabeth Neeley
Court Review: Volume 40, Issue 3-4 - Racial And Ethnic Bias In The Courts: Impressions From Public Hearings, Elizabeth Neeley
Court Review: The Journal of the American Judges Association
Attitudes toward the courts can affect the way individuals perceive their role in the justice system: their willingness to comply with laws, report crimes, file legal suits, serve as jurors, and so on. In short, a positive public perception of the courts is “critical to the maintenance and operation of the judicial system.” Given the import of these perceptions, a substantial body of research has examined the factors that explain differing levels of support for the court system. Although many of these studies examine national samples or examine attitudes toward the U.S. Supreme Court, it is beyond the scope of …
Court Review: Volume 40, Issue 3-4 - Complete Issue
Court Review: Volume 40, Issue 3-4 - Complete Issue
Court Review: The Journal of the American Judges Association
No abstract provided.
Court Review: Volume 40, Issue 3-4 - Editor's Note
Court Review: Volume 40, Issue 3-4 - Editor's Note
Court Review: The Journal of the American Judges Association
With this double issue—and coming issues on jury reform and judicial independence in the trial court—we will be back on schedule by the time of the American Judges Association’s annual conference in October in San Francisco. I have appreciated your patience as our publication schedule has lagged behind the calendar; I have also appreciated the many kind comments we’ve received regarding the quality of the articles you have received.
Court Review: Volume 40, Issue 3-4 - President’S Column, Michael R. Mcadam
Court Review: Volume 40, Issue 3-4 - President’S Column, Michael R. Mcadam
Court Review: The Journal of the American Judges Association
I have just returned from the annual meeting of the Canadian Association of Provincial Court Judges (CAPCJ) in Whitehorse, Yukon Territory. I must first tell you what a wonderful group of judges I met in Canada. I made many new friends and was treated as an old friend. I later realized that this treatment was not due to my overwhelming personality but to the fact that the AJA is respected by Canadian judges and has a great reputation in Canada. Thus the AJA president is treated as a friend.
Court Review: Volume 40, Issue 3-4 - The Resource Page
Court Review: Volume 40, Issue 3-4 - The Resource Page
Court Review: The Journal of the American Judges Association
No abstract provided.
Court Review: Volume 40, Issue 3-4 - Problem-Solving Supervision: Specialty Probation For Individuals With Mental Illnesses, John Petrila, Jennifer L. Skeem
Court Review: Volume 40, Issue 3-4 - Problem-Solving Supervision: Specialty Probation For Individuals With Mental Illnesses, John Petrila, Jennifer L. Skeem
Court Review: The Journal of the American Judges Association
One of the most important developments in American law over the last decade has been the exponential growth of problem-solving courts. Such courts achieve efficiencies by consolidating certain types of cases before specially designated judges. Additionally, in many instances, problem-solving courts adopt a therapeutic focus by attempting to achieve outcomes (e.g., obtaining treatment for a defendant) that go beyond the traditional goals of the judicial system. A recent commentary in this journal noted that “problem-solving courts generally focus on the underlying chronic behaviors of criminal defendants.” These courts include, but are not limited to drug courts, mental health courts, domestic …
Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh
Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh
Faculty Scholarship
Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …
The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith
The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith
University of San Diego Public Law and Legal Theory Research Paper Series
This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …
The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin
The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin
Cornell Law Faculty Publications
Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …
The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk
The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk
Articles
Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …
Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy Under Due Process, Tracy A. Thomas
Ubi Jus, Ibi Remedium: The Fundamental Right To A Remedy Under Due Process, Tracy A. Thomas
San Diego Law Review
This essay is part of the 2003 Remedies Forum symposium comprised of international remedies scholars addressing the topic of equitable relief in the fifty years since Brown v. Board of Education. It may be true as other scholars have argued that since the time of Brown, institutional defendants have won at the expense of plaintiffs. Defendants have learned that delay and defiance work. The U.S. Supreme Court has adopted a standard for ordering equitable relief that significantly defers to defendant wrongdoers at the plaintiffs' expense. Epithets of activist courts and judicial legislation have colored the existing scholarship and portrayed remedial …
Yes, Thankfully, Euclid Lives, Charles M. Haara, Michael Allan Wolf
Yes, Thankfully, Euclid Lives, Charles M. Haara, Michael Allan Wolf
UF Law Faculty Publications
Professors Haar and Wolf reiterate their endorsement of Progressive jurisprudence, as embodied in the Supreme Court's opinion in Village of Euclid v. Ambler Realty Co., despite Professor Eric Claeys's effort to expose the political theory underlying Progressive legal thought. They highlight problems with Professor Claeys's portrayal of the actual practice of zoning and with his use of history, problems that seriously undercut Professor Claeys's findings regarding the political beliefs of early zoning and planning advocates, the evolution of zoning law in the courts, and the role natural law played in American legal history.
Defining Dicta, Michael Abramowicz, Maxwell Stearns
Defining Dicta, Michael Abramowicz, Maxwell Stearns
ExpressO
The doctrine of stare decisis applies only to holdings of past cases, but scholars and courts have paid far more attention to stare decisis doctrine than to the distinction between holding and dicta, particularly in recent years. The lack of attention that the distinction receives may reflect a sense among legal analysts that they know dicta when they see it, but the problem is considerably more analytically complex than it may at first appear. In this Article, Professors Abramowicz and Stearns identify a number of structural problems that may affect whether statements in judicial opinions should be classified as holding …
Towards An Establishment Clause Theory Of Race-Based Allocation After Grutter: Administering Race-Conscious Financial Aid, Maurice R. Dyson
Towards An Establishment Clause Theory Of Race-Based Allocation After Grutter: Administering Race-Conscious Financial Aid, Maurice R. Dyson
ExpressO
The novel application of the Establishment Clause doctrine by way of analogy to race0based financial aid after Grutter and Grats, while not identical, speaks to real issue of neutrality that is implicit in the debate of administering race-based scholarships that should be truthfully acknowledged. There is no concern about improper university indoctrination of race as the Grutter court has already established race-based diversity as worthy of a compelling state interest. Moreover, there is no concern that a college or university would establish an imprimatur on race-based scholarships merely or solely because it identifies potential candidates meeting specified eligibility criteria which …
Curriculum Development At A New Law School: Dismantling The Walls Of Separation, Jeffrey C. Tuomala
Curriculum Development At A New Law School: Dismantling The Walls Of Separation, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
Common-Law Compulsory Counterclaim Rule: Creating Effective And Elegant Res Judicata Doctrine, Kevin M. Clermont
Common-Law Compulsory Counterclaim Rule: Creating Effective And Elegant Res Judicata Doctrine, Kevin M. Clermont
Cornell Law Faculty Publications
Even in the absence of an applicable statute or court rule, failure to assert an available counterclaim precludes bringing a subsequent action thereon if granting relief would nullify the judgment in the initial action. This so-called common-law compulsory counterclaim rule emerges from the intuitive principle of claim preclusion that a valid and final judgment generally precludes the defendant from later asserting mere defenses to the claim. The implicit extension of this idea is that once a plaintiff obtains a judgment, the defendant generally cannot bring a new action to undo the judgment by reopening the plaintiff’s claim and pushing those …
Gaming Delaware, William Wilson Bratton
Trumps, Inversions, Balancing, Presumptions, Institution Prompting, And Interpretive Canons: New Ways For Adjudicating Conflicts Between Legal Norms, Carlos E. Gonzalez
Trumps, Inversions, Balancing, Presumptions, Institution Prompting, And Interpretive Canons: New Ways For Adjudicating Conflicts Between Legal Norms, Carlos E. Gonzalez
Rutgers Law School (Newark) Faculty Papers
This article begins by reviewing the axiomatic principles that govern courts when dealing with cases in which two legal norms are interpreted as standing in conflict. The article then makes three distinct contributions.
First, the article explicates the central justification behind the use and perpetuation of the extant principles. In briefest terms, the extant principles are best justified as an attempt to resolve cases in which legal rules stand in conflict in a way that enhances or preserves the democratic legitimacy of law. They do this by favoring norms created by entities of relatively strong democratic legitimacy over norms created …
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus
Montesquieu's Mistakes And The True Meaning Of Separation, Laurence Claus
University of San Diego Public Law and Legal Theory Research Paper Series
“The political liberty of the subject,” said Montesquieu, “is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.” The liberty of which Montesquieu spoke is directly promoted by apportioning power among political actors in a way that minimizes opportunities for those actors to determine conclusively the reach of their own powers. Montesquieu’s constitution of liberty is the constitution that most plausibly establishes the rule of law. Montesquieu concluded that this constitution could …
Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green
Prosecutorial Neutrality, Fred C. Zacharias, Bruce A. Green
University of San Diego Public Law and Legal Theory Research Paper Series
This Article examines the ideal of prosecutorial neutrality in an effort to determine its value as a measure of prosecutorial conduct. Commentators often have assumed that prosecutors should be “neutral” in making discretionary decisions or have criticized prosecutors for decisions that purportedly demonstrate a lack of neutrality. The notion of prosecutorial neutrality recalls the traditional conception of prosecutors as “quasi-judicial” officers and emphasizes the distinction between prosecutors and lawyers for private parties. But the specific meaning attributed to prosecutorial neutrality has varied depending on the context. The term refers to diverse, and potentially inconsistent, views of appropriate prosecutorial conduct. The …