Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- SelectedWorks (63)
- Selected Works (22)
- University of Richmond (3)
- Northwestern Pritzker School of Law (2)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (2)
-
- University of South Carolina (2)
- Western Kentucky University (2)
- Chicago-Kent College of Law (1)
- Columbia Law School (1)
- Duke Law (1)
- Fordham Law School (1)
- Maurer School of Law: Indiana University (1)
- Seattle University School of Law (1)
- University of Baltimore Law (1)
- University of Cincinnati College of Law (1)
- University of Colorado Law School (1)
- University of Louisville (1)
- University of Michigan Law School (1)
- University of Oklahoma College of Law (1)
- University of Pennsylvania Carey Law School (1)
- University of Pittsburgh School of Law (1)
- University of the District of Columbia School of Law (1)
- Vanderbilt University Law School (1)
- Villanova University Charles Widger School of Law (1)
- Washington University in St. Louis (1)
- West Virginia University (1)
- Western State College of Law (1)
- Publication
-
- Stuart M Benjamin (10)
- All Faculty Scholarship (3)
- Faculty Scholarship (3)
- George Reff Jr. (3)
- Beth Thornburg (2)
-
- Christopher B. McNeil, J.D., Ph.D. (2)
- Christopher M. Pietruszkiewicz (2)
- Debora L. Threedy (2)
- Faculty Working Papers (2)
- Jeffrey A. Van Detta (2)
- MSS Finding Aids (2)
- Matthew W. Wolfe (2)
- Michael H LeRoy (2)
- Roger Craig Green (2)
- Scholarly Works (2)
- South Carolina Law Review (2)
- University of Richmond Law Review (2)
- mary k ramirez (2)
- Amanda Hollis-Brusky (1)
- Amanda J Peters (1)
- American Indian Law Review (1)
- Arthur F Greenbaum (1)
- Articles (1)
- Articles by Maurer Faculty (1)
- Bradley W. Joondeph (1)
- Brandice Canes-Wrone (1)
- Brian G. Slocum (1)
- Caleb E. Mason (1)
- Christopher J. Buccafusco (1)
- Crystal Gafford Muhammad (1)
- Publication Type
Articles 1 - 30 of 116
Full-Text Articles in Law
Prologue To District Of Columbia Democracy And The Third Branch Of Government, John W. Nields, Timothy J. May
Prologue To District Of Columbia Democracy And The Third Branch Of Government, John W. Nields, Timothy J. May
University of the District of Columbia Law Review
Why does the President of the United States appoint the judges of the District of Columbia's local court system? Why is the District of Columbia's local court system funded and overseen by the United States Congress? Why does the United States Attorney for the District of Columbia and not the Attorney General for the District of Columbia function as a local prosecutor, prosecuting most D.C. Code crimes in the District of Columbia's courts? The four essays which follow this introduction explore the rich history behind these unusual structural features of the District of Columbia government; they present the arguments for …
How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt
How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt
Nathan A Greenblatt
Mandatory minimum sentences are anathema to judges due to, it is commonly said, judges’ “utter lack of power to do anything for the exceptional defendants that move them.” In the case of Weldon Angelos, for example, U.S. District Judge Paul Cassell lamented that sentencing Mr. Angelos to 55 years in prison “is unjust, cruel, and even irrational. [The court] reluctantly concludes that it has no choice.” The Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years, because it, too, has concluded that mandatory sentences give judges no choice in sentencing. Indeed, the U.S. Sentencing Commission recently …
Promoting An Independent Judiciary As A Rule Of Law Principle: A Brief Commentary On The Supreme Court Of Pakistan, Kamaal Zaidi
Promoting An Independent Judiciary As A Rule Of Law Principle: A Brief Commentary On The Supreme Court Of Pakistan, Kamaal Zaidi
Kamaal Zaidi
The rule of law is often difficult to establish in developing nations characterized by frequent political changes and unstable events that affect the separation of powers between the three branches of government – the executive, legislature, and judiciary. In particular, the integrity of the judiciary is often damaged by influences from the executive and legislative branches in that core democratic principles are promoted, including civil liberties, the supremacy of law, law and order, and transparency and accountability among government actors. In Pakistan, turbulent political events over the years have irreparably damaged the ability of the Supreme Court of Pakistan to …
Direct Application Of International Commercial Law In Chinese Courts: Intellectual Property, Trade, And International Transportation, Jie Huang
Jie Huang
Different from scholarship that focuses on the relationship between China and International Law regarding territory, armed conflicts, human rights violations, this article explores the relationship between China and International Law in a commercial setting. It explores how Chinese courts apply international commercial law in adjudicating cases involving foreign factors. Moreover, this article goes beyond contemporary scholarship that concerns international commercial law and China but only focuses on the text of Chinese statutes and judicial interpretations: it elaborates how courts apply statutes and judicial interpretations in actual adjudications through cases studies. By covering cases decided by the Supreme People’s Court and …
Who's Your Daddy?: A Psychoanalytic Exegesis Of The Supreme Court's Recent Patent Jurisprudence, Gretchen S. Sween
Who's Your Daddy?: A Psychoanalytic Exegesis Of The Supreme Court's Recent Patent Jurisprudence, Gretchen S. Sween
Gretchen S. Sween
ABSTRACT Who’s Your Daddy?: A Psychoanalytic Exegesis of the Supreme Court’s Recent Patent Jurisprudence Gretchen S. Sween, Ph.D., J.D. Dechert LLP 300 W. 6th Street Suite 1850 Austin, TX 78701 gretchen.sween@dechert.com Since a new administration took office in 2001, the Supreme Court has granted certiorari in, and then decided, twelve patent cases in six years. Even more extraordinary is the Supreme Court’s remarkable consistency during this recent incursion into patent law: it has either reversed, vacated, and/or remanded Federal Circuit decisions in each instance in opinions that have been unanimous or nearly unanimous. Moreover, the Supreme Court’s rhetoric in formulating …
Reconsidering Virginia Judicial Selection, Carl W. Tobias
Reconsidering Virginia Judicial Selection, Carl W. Tobias
University of Richmond Law Review
No abstract provided.
Practice Makes Perfect? An Empirical Study Of Claim Construction Reversal Rates In Patent Cases, David L. Schwartz
Practice Makes Perfect? An Empirical Study Of Claim Construction Reversal Rates In Patent Cases, David L. Schwartz
Michigan Law Review
This Article examines whether U.S. district court judges improve their skills at patent claim construction with experience, including the experience of having their own cases reviewed by the Court of Appeals for the Federal Circuit. In theory, higher courts teach doctrine to lower courts via judicial decisions, and lower courts learn from these decisions. This Article tests the teaching-and-learning premise on the issue of claim construction in the realities of patent litigation. While others have shown that the Federal Circuit reverses a large percentage of lower court claim constructions, no one has analyzed whether judges with more claim construction appeal …
Reynolds, Charles H., 1924-1996 (Sc 1778), Manuscripts & Folklife Archives
Reynolds, Charles H., 1924-1996 (Sc 1778), Manuscripts & Folklife Archives
MSS Finding Aids
Finding aid only for Manuscripts Small Collection 1778. Tributes to Charles H. Reynolds, justice of the Kentucky Supreme Court, on his death. Includes eulogy by Chief Justice Robert F. Stevens, funeral homily by his son Rev. James Patrick Reynolds, and a resolution adjourning the Kentucky State Senate in his memory. Also includes a subsequent tribute by his son Mike Reynolds at the unveiling of his portrait at the Warren County Justice Center.
The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Levin
The Food Stays In The Kitchen: Everything I Needed To Know About Statutory Interpretation I Learned By The Time I Was Nine, Hillel Levin
Hillel Levin
Based on a true story, this brief Essay begins with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), and others--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.
The piece is meant to demonstrate the following:
* We all regularly use the basic tools and modes of statutory interpretation;
* When we interpret pronouncements in real life, …
Constitution By Compromise, Howard Schweber, Amnon Cavari
Constitution By Compromise, Howard Schweber, Amnon Cavari
Howard Schweber
The question of empowering the court and the limits of constitutional protection are at the heart of the debate over constitutional design in Israel. Lacking a comprehensive written constitution, Israel nonetheless has a set of basic laws which encompass many of the functions of a constitutional text making it a near-complete constitution. Nonetheless, there continues to be considerable support for the idea of a single, formally adopted constitutional text. Recently, several proposals have been brought to the forefront of political discussions through the actions of various interest groups outside the government, and energized and committed efforts by government officials and …
Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy
Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy
Michael H LeRoy
Judicial review of arbitration awards is highly deferential, but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.
Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by …
Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker
Will Video Kill The Trial Courts' Star? How "Hot" Records Will Change The Appellate Process, Leah A. Walker
Leah A Walker
No abstract provided.
United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy
United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy
Debora L. Threedy
This paper is a case study of United States v. Hatahley, a leading case in the Remedies canon, using the methodology of “legal archaeology” to reconstruct the historical, social and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over a hundred horses and burros. The first section of the paper presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining …
The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington
The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington
Margaret C Tarkington
Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial …
The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky
The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky
Noah B Novogrodsky
This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …
A Fighting Chance: An Analysis Of The Role Of Social Science Evidence In Higher Education Affirmative Action And K-12 Voluntary Desegregation Cases, Crystal Gafford Muhammad
A Fighting Chance: An Analysis Of The Role Of Social Science Evidence In Higher Education Affirmative Action And K-12 Voluntary Desegregation Cases, Crystal Gafford Muhammad
Crystal Gafford Muhammad
The present inquiry focuses on the role of social science evidence contemporarily, using observations from judicial opinions in race conscious admissions cases. Using a set of judicial opinions from K-12 voluntary desegregation and higher education affirmative action in admissions, I use legal and statistical analysis to argue that social science data presented into evidence is of limited effect. In fact, I find judicial political philosophy is the greatest predictor of opinions in this area of law. However, the question is not whether social science evidence is influential or even persuasive, but whether it is useful in politically contentious cases. It …
The Meaning, Measure, And Misuse Of Standards Of Review, Amanda J. Peters
The Meaning, Measure, And Misuse Of Standards Of Review, Amanda J. Peters
Amanda J Peters
Standards of review are critical to appellate review because they set limitations upon the appellate court's review process. In doing so, standards of review balance judicial authority, make judicial review more efficient, standardize the review process, and give notice to parties who wish to appeal their cases. However, these policies and their effects are diminished when appellate judges misuse or ignore standards of review.
This article examines the theories that led to the creation of standards of review and identifies four ways that appellate courts misuse standards of review. It analyzes over 8,000 cases from Texas and California, along with …
Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez
Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez
mary k ramirez
Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing
Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …
United States V. Hatahley: A Legal Archaeology Case Study Of Law And Racial Conflict, Debora L. Threedy
United States V. Hatahley: A Legal Archaeology Case Study Of Law And Racial Conflict, Debora L. Threedy
Debora L. Threedy
This paper is a case study of United States v. Hatahley, a leading case in the Remedies canon, using the methodology of “legal archaeology” to reconstruct the historical, social and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over a hundred horses and burros. The first section of the paper presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining …
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
Stuart M Benjamin
Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
Stuart M Benjamin
Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …
Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez
Into The Twilight Zone: Informing Judicial Discretion In Federal Sentencing, Mary K. Ramirez
mary k ramirez
Into the Twilight Zone: Informing Judicial Discretion in Federal Sentencing
Recent changes in federal sentencing have shifted discretionary decision-making back to federal district court judges, while appellate courts review challenged sentences for reasonableness. Each judge brings considerable legal experience and qualifications to the bench, however, cultural experiences cannot necessarily prepare judges for the range of persons or situations they will address on the bench. Social psychologists who have studied social cognition have determined that the human brain creates categories and associations resulting in implicit biases and associations that are often unconscious or subconscious. Moreover, research suggests that such biases may …
Comparing Judicial Compensation: Apples, Oranges, And Cherry-Picking, Matthew W. Wolfe
Comparing Judicial Compensation: Apples, Oranges, And Cherry-Picking, Matthew W. Wolfe
Matthew W. Wolfe
United States Supreme Court Chief Justice John Roberts describes the American judiciary as the envy of other constitutional democracies. But in one respect, the judiciary apparently trails others: judicial pay. Citing higher salaries of judges in other countries, Chief Justice Roberts and Associate Justices Stephen Breyer and Samuel Alito have all argued that inadequate judicial pay leads to a decline in judicial performance and quality. Judicial pay advocates apparently make these comparisons to emphasize that low judicial salaries “threaten” judicial quality and independence or, alternatively, that high judicial salaries “ensure” quality and independence. But the argument is incomplete, relying upon …
Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven
Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven
Ken Miller
No abstract provided.
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
Stuart M Benjamin
Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
Stuart M Benjamin
Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …
Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel
Statistical String Theory For Courts: If The Data Don't Fit..., David F. Babbel
David F Babbel
The primary purpose of this article is to provide courts with an important new tool for applying the correct probability distribution to a given legal question. This tool is path-breaking and will have an extensive impact on how a wide variety of cases are decided. In areas as diverse as criminal prosecutions and civil lawsuits alleging securities fraud, courts must assess the relevance and reliability of statistical data and the inferences drawn therefrom. But, courts and expert witnesses often make mistaken assumptions about what probability distributions are appropriate for their analyses. Using the wrong probability distribution can lead to invalid …
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
Stuart M Benjamin
Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati
Stuart M Benjamin
Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …
Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen
Judging In Chambers: The Powers Of A Single Justice Of The Supreme Court, Daniel M. Gonen
Daniel Gonen
A relatively obscure power of individual federal judges is the power to grant interim relief to a litigant pending appellate review of a lower court’s judgment or order. Individual judges routinely use this power, exercising virtually unfettered discretion to control the interim outcome of cases during the months and years it can take for the appellate process to conclude. In some cases, an individual judge has the power to decide if a case will be kept in a reviewable posture at all. This article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment of …