Law Commons^™

Civil Protective Orders In Integrated Domestic Violence Court: An Empirical Study, Erika Rickard

Erika Rickard

New York's Integrated Domestic Violence (IDV) Court was created to streamline the judicial process and promote efficiency and victim safety in cases of domestic violence. One would expect this collaboration and concerted effort on improving the justice system for victims of domestic violence would yield faster results than under the traditional system. The data presented here indicate just the opposite: IDV Courts take longer to address motions for civil protective orders, and are not significantly more likely to grant such orders than traditional matrimonial courts. Delays in the civil protective order process suggest that the problem-solving court may not be …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Information Sharing In A Common Law Of Sentencing: A Skeptic's Guide, Ryan W. Scott

Ryan W. Scott

For decades, prominent scholars and judges have called for the development of a “common law of sentencing” in the United States. One strand of scholarship stresses the information sharing function of the common law: sentencing judges need access to a body of written opinions that reveals how other courts have handled similar cases. The idea is that, fueled by better information, case-by-case common law reasoning will promote inter-judge consistency and rationality in sentencing law. This Article takes a skeptical view, identifying three sets of challenges for an information-sharing approach. First, there are daunting information-collection challenges. A healthy common law depends …

A Farewell To Harms: Presuming Irreparable Injury In Constitutional Litigation, Anthony Disarro

Anthony DiSarro

Although it is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury can be presumed in constitutional cases. The Supreme Court has not addressed a presumption of irreparable harm in the constitutional context but it has disapproved of the practice for federal statutory claims. This article argues that the presumption is improper. The history of the injunctive remedy in this country suggests that irreparable injury is an essential element of proof that should be applied in all cases. Indeed, although constitutional rights are of paramount importance in our legal system, the fact that …

Getting Away With Murder (Most Of The Time): A Sesquicentennial Analysis Of Civil War Era Homicide Cases In Boone County, Missouri, Frank O. Bowman Iii

Frank O. Bowman III

In the quarter century centered on the Civil War, 1850-1875, fifty-three homicide cases came before the courts of Boone County, Missouri, of which Columbia, home of the University of Missouri, is the county seat. To remarkable degree, the story of these killings, told in this article, is a chronicle of the place and period.

The article’s method might be described as “murder as social history.” Its narrative thread is an effort to explain the remarkable fact that only twelve of the fifty-three defendants charged with murder were ever convicted of any form of criminal homicide. The explanation requires an introduction …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Jury Deliberations – How Do Reasoning Skills Interplay With Decision-Making?, Bethel G.A Erastus-Obilo

Bethel G.A Erastus-Obilo

We may well wonder how the Casey Anthony reached its verdict in spite of what many of us thought was a raft of compelling evidence. In order to understand some of the nuances at play, it is important to understand some of the issues that confront a jury and how the criminal justice system ensures or attempts to ensure a fair outcome in our trial by jury system

Justice Holmes At The Intersection Of Philosophical And Legal Pragmatism, Seth C. Vannatta

Seth C Vannatta

Because of the prolific scholarship on legal theory by Judge Richard Posner, especially since his turn away from law and economics toward “pragmatism,” legal scholars began reading “legal pragmatism” as references to Posner’s thought alone. My present task is part of a larger process of rethinking Posner’s version of legal pragmatism. Posner’s inspiration for his turn toward pragmatism can be attributed, in large measure, to Oliver Wendell Holmes, Jr. Posner buys into three central insights of legal pragmatism, whose origins lie in the work of Holmes, anti-formalism, the prediction theory of the law, and a modicum of indeterminacy in judicial …

Shirking The Duty To Defend In Florida: Is Assignment The Exception To Argonaut?, Matthew J. Jowanna

Matthew J. Jowanna

A lawsuit is filed by a plaintiff and the defendant is served. The defendant has a drawer full of liability insurance policies and, therefore, the insured defendant sends a copy of the served complaint to any and all insurance carriers that may provide coverage for the claim. The insured defendant then receives a few coverage denials for reasons such as the event at issue did not occur within a certain policy period or that the insured’s private automobile policy does not provide coverage for a commercial general liability claim. In any event, the denials appear to be valid - so …

All Your Eggs In One Basket: Why Contract Law Proves Unreliable In Frozen Embryo Adoption Cases, Austin R. Caster

Austin R Caster

This article will show why infertile couples cannot unequivocally rely on good faith, consensual contracts in cases of assisted reproductive technology because the law is so unsettled. Each section will show why, because of alleged public policy implications, contract doctrines or clauses such as (1) the termination of parental rights, (2) the doctrine of waste, and (3) liquidated damages still remain almost completely unreliable in a matter regarding assisted reproductive technology. Though this uncertainty affects infertile couples trying to complete their families through various methods including adoption, surrogacy, in vitro fertilization, and artificial insemination, this article will focus on cases …

Seeing The Forest Through The Trees: Thinking Critically About Mental Health Courts, John A. Bozza

John A Bozza

The almost universal acceptance of the problem-solving court concept by both the courts and the academic community provides a good example of the hazards of the bandwagon effect on the de-velopment of public policy. The proponents of therapeutic juris-prudence have successfully promoted the adoption of these pro-grams by repeating and then having others repeat a mantra of success that grossly belies reality and ignores the compelling is-sues they raise. Not surprisingly, this has led to the develop-ment of an extensive bureaucracy fueled almost entirely by fed-eral money and encouraged by cheerleaders entrenched in the self-serving subculture of therapeutic jurisprudence. Unfortunately, …

Strengthening The Rule Of Virtue And Finding Chinese Law In "Other" Places: Gods, Kin, Guilds And Gifts, Mary Szto

Mary Szto

Discussions about the rule of law in China today often do not consider the role of virtue or ritual. At the same time, many bemoan slow or no legal reform. Before the tumultuous events of the 20th century, traditional Chinese law (TCL) was remarkably continuous and stable for centuries. It was a blend of ritual and law focused on flourishing and virtue formation. Ritual was communion with, and law accountability to, the invisible spirit world. This inseparable blend spanned multiple jurisdictions, from state codes and courts to divine petitions and courts, to ancestral rites and family codes, to merchant codes …

Chooseyourjudges.Org: Treating Elected Judges As Politicians, Ric Simmons

Ric Simmons

The United States is the only country in the world that elects its judges, and popular support for judicial elections is so strong that we will certainly continue electing our judges for many years to come. However, even after centuries of conducting judicial elections, we have no clear answer to a basic question: what criteria are voters supposed use when they choose between competing judicial candidates? This article proposes a simple but controversial answer to that question: voters ought to evaluate judicial candidates based on the candidates' political ideology, and the only way to truly know the political ideology of …

Violent Video Games & "Constitutionalized" Negligence, Deana Ann Pollard Sacks

Deana A Pollard

Violent video games create serious risks of harm to children’s brain functioning, health, and safety. Extremely wealthy game producers’ demonstrated disregard for children’s safety raises questions about lower courts’ negligent speech liability rules that effectively bar tort liability for unreasonably dangerous speech, including violent video games. Violent Video Games & “Constitutionalized” Negligence reviews the latest scientific data on the effects of violent video games on children and challenges the prevailing negligent speech liability rules generally, and specifically relative to violent video game producers’ relationship with children. Most courts have adopted the Brandenburg incitement test to prove fault and causation in …

Toward Adequacy: Sense And Statutory Construction In The Judicial Review Provisions Of The Apa, Sarah L. Olson

Sarah L Olson

Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suffered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Procedure Act (“APA”), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency action. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA.

But the very language meant to welcome such suits into court also acts as a …

A Positive Political Theory Of Rules And Standards, Tonja Jacobi, Frank Cross, Emerson Tiller

Tonja Jacobi

How judges choose between rules and standards fundamentally shapes case outcomes and the development of broader doctrine. While the literature has much to say about the relative merits of rules versus standards, it has largely failed to produce a comprehensive explanation of how judges make that choice. This Article takes a novel approach, using Positive Political Theory to examine the incentives of higher court judges and the information available to them about how lower court judges will be likely to use those doctrinal tools. By taking seriously both how substantive and ideological judicial preferences shape the choice over doctrinal form …

Judges Who Settle, Hillary A. Sale

Hillary A Sale

This Article develops a construct of judges as gatekeepers in corporate and securities litigation, focusing on the last-period, or settlement stage of the cases. Many accounts of corporate scandals have focused on gatekeepers and the roles they played or, in some cases, abdicated. Corporate gatekeepers, like investment bankers, accountants, and lawyers, function as enablers and monitors. They facilitate transactions and enable corporate actors to access the financial and securities markets. Without them the transactions would not happen. In class actions and derivative litigation, judges are the monitors and enablers. They are required to oversee the litigation arising from bad transactions …

Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh

Edward D. Cavanagh

Abstract This article examines the role of litigation culture in establishing standards for the conduct of litigation in the federal courts. It argues that culturally based practices are firmly embedded in the federal civil justice system. The practice culture in a particular district may be the source of local rules or may serve as a gap-filler to provide standards where written rules do not exist or are not cost-effective to draft. Rules at odds with cultural practices face resistance from the bench and bar. Culturally rooted practices are not easily dislodged, and a mere amendment to the Federal Rules is …

Rulemaking, Litigation Xculture And Reform In Federal Courts, Edward D. Cavanagh

Edward D. Cavanagh

Abstract This article examines the role of litigation culture in establishing standards for the conduct of litigation in the federal courts. It argues that culturally based practices are firmly embedded in the federal civil justice system. The practice culture in a particular district may be the source of local rules or may serve as a gap-filler to provide standards where written rules do not exist or are not cost-effective to draft. Rules at odds with cultural practices face resistance from the bench and bar. Culturally rooted practices are not easily dislodged, and a mere amendment to the Federal Rules is …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Can The Rule Of Law Survive Judicial Politics?, Charles G. Geyh

Charles G. Geyh

According to a Renaissance myth, the ermine would rather die than soil its pristine, white coat. English and later American judges would adopt the ermine as a symbol of the judiciary’s purity and commitment to the rule of law. This “ermine myth” remains central to the legal establishment’s conception of the judicial role: independent judges, the argument goes, disregard extralegal influences and strictly follow the law. In contrast, political scientists had long theorized that judicial independence liberates judges to disregard the law and substitute their extralegal policy preferences. A recent spate of interdisciplinary research, however, has led to an emerging …

Bad Romance: The Uncertain Promise Of Modeling Legal Standards Of Proof With The Inference To The Best Explanation, Michael J. Stephan

Michael J. Stephan

Abductive reasoning, commonly described as ‘inference to the best explanation,” has long found favor among many philosophers as a method of choosing between competing candidate explanations. Inference to the best explanation (IBE) dictates that when confronted with a set of different explanations for a given phenomenon, we should examine the explanatory virtues of each of the respective explanations—e.g., consilience, simplicity, coherence, lack of ad hocery, testability, et cetera—and defeasibly accept as true the candidate explanation which does the best job of explaining the phenomenon. Such an inference pattern is believed to be prolific in the reasoning conducted during daily life—but …

Judges Who Settle, Hillary A. Sale

Hillary A Sale

This Article develops a construct of judges as gatekeepers in corporate and securities litigation, focusing on the last-period, or settlement stage of the cases. Many accounts of corporate scandals have focused on gatekeepers and the roles they played or, in some cases, abdicated. Corporate gatekeepers, like investment bankers, accountants, and lawyers, function as enablers and monitors. They facilitate transactions and enable corporate actors to access the financial and securities markets. Without them the transactions would not happen. In class actions and derivative litigation, judges are the monitors and enablers. They are required to oversee the litigation arising from bad transactions …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel

Jeffrey W Stempel

The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Randy Beck

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Interpreting Judicial Interpretations Of The Criminal Statutes Of The Trafficking Victims Protection Act: Ten Years Later, Mohamed Mattar

Mohammad Mattar

The Trafficking Victims Protection Act (TVPA) established for the first time the crime of trafficking in persons. This article will analyze court cases that have been decided under the TVPA. The article will show that American courts, relying upon the text of the criminal statutes of the TVPA, as well as the findings of Congress, have broadened the interpretation of the offenses recognized under the Act to expand criminal liability, whether in cases of sex trafficking or labor trafficking. The article will also address cases in which the TVPA was challenged on constitutional grounds and whether it may apply on …

A Crowning Achievement In Protecting High Ranking Officials From Unreasonable Depositions: The Impact Of The Crown Central Test, Scott A. Mager

scott a mager

In an increasingly litigious society, the attempt to first set depositions of high-ranking corporate executives, who are often referred to as “apex officials,” has become commonplace. While these executives rarely have personal knowledge of the facts and issues surrounding a given case, broad-stroked claims against parent companies and lax discovery rules seem to serve as a launching pad to harass executives and extort settlements through threats of—and in many cases the actual taking of—depositions from chief executive officers, chief operating officers, chief financial officers, or other apex executives. In recent years, courts across the country have sought to articulate the …

Review Of 'The Judicial House Of Lords 1876-2009' By Louis Blom-Cooper, Brice Dickson And Gavin Drewry, Lindsay J. Stirton Ph.D.

Lindsay J Stirton Ph.D.

No abstract provided.

Heidegger And The Essence Of Adjudication, George Souri

George Souri

This paper presents an account of adjudication based on the philosophy of Martin Heidegger. As this paper argues, we can only hope to better understand adjudication if we recognize that adjudication is a socio-temporally situated activity, and not a theoretical object. Heidegger’s philosophical insights are especially salient to such a project for several reasons. First, Heidegger’s re-conception of ontology, and his notion of being-in-the-world, provide a truer-to-observation account of how human beings come to understand their world and take in the content of experience towards completing projects. Second, Heidegger’s account of context, inter-subjectivity, and common understanding provide a basis upon …