Law Commons^™

Monroe County, Kentucky - Records, 1826-1842 (Sc 1761), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid for Manuscripts Small Collection 1761. Record book of William G. Howard documenting his duties as a Justice of the Peace. It includes stray notices, legal judgments, and marriages performed (Click on "Additional Files" below for typescripted list of marriages.)

Enhancing Courtroom Presentation Through Technology, Fredric I. Lederer

Popular Media

No abstract provided.

Courtroom Technology, Fredric I. Lederer, Tom O'Connor, Timothy A. Piganelli

Popular Media

No abstract provided.

Factual Premises Of Statutory Interpretation In Agency Review Cases, Todd S. Aagaard

Working Paper Series

This article examines factual premises of statutory interpretation in agency review cases, and proposes an approach that would better integrate the treatment of such factual premises into the overall structure of administrative law. Courts frequently encounter questions of statutory interpretation that depend on underlying factual background, context, and implications. When they do so, courts generally assume that they retain the authority to decide the factual premises and thereby to answer questions of statutory interpretation that depend on factual premises. This is problematic from a functional standpoint, because courts often lack the information or expertise necessary to assess these underlying facts …

Finding And Citing The "Unimportant" Decisions Of The U.S. Courts Of Appeals, Peter W. Martin

Cornell Law Faculty Publications

A Federal Rule of Appellate Procedure that took effect at the end of 2006 overturned past policies in several circuits that banned or severely limited citation of unpublished or nonprecedential opinions. All U.S. Court of Appeals decisions issued after January 1, 2007, published or not, may be cited. One of the objections raised by those opposed to the rule rested on concern about access to such opinions, which constitute more than 80% of the annual total. The Judicial Conference committee that drafted and pressed for adoption of the rule pointed out that federal legislation called on the circuit courts to …

Online Access To Court Records - From Documents To Data, Particulars To Patterns, Peter W. Martin

Cornell Law Faculty Publications

For over a decade the public has had remote access to federal court records held in electronic format, including documents filed by litigants and judicial rulings. First available via dial-up connections, access migrated to the Web in 1998. That and a succession of other improvements to the federal "Public Access to Court Electronic Records" system or PACER prompted the Administrative Office of the United States Courts to proclaim in 2001 that "the advancement of technology has brought the citizen ever closer to the courthouse." Unquestionably, what the Administrative Office of the U.S. Courts and Judicial Conference of the United States …

Book Review: Justice In Robes By Ronald Dworkin (2006), Dan Priel

All Papers

Since the 1960's Ronald Dworkin has been arguing for a particular account of law that he believed was both explanatorily superior to the one offered by competing theories, and also the basis for normative arguments for producing right answers to legal questions. Justice in Robes collects Dworkin's most recent essays on this subject and thus provides the appropriate opportunity for assessing the legal theory of one of the more influential legal philosophers. In this Review I seek to offer a clearer account than appears in the book itself of Dworkin's project, and in this way offer a measured assessment of …

Presidential Authority And The War On Terror, Joseph W. Dellapenna

Working Paper Series

Immediately after the attacks on the United States of September 11, 2001, President George W. Bush claimed, among other powers, the power to launch preemptive wars on his own authority; the power to disregard the laws of war pertaining to occupied lands; the power to define the status and treatment of persons detained as “enemy combatants” in the war on terror; and the power to authorize the National Security Agency to undertake electronic surveillance in violation of the Foreign Intelligence Surveillance Act. With the exception of the power to launch a preemptive war on his own authority (for which he …

Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat

All Faculty Scholarship

Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.

Bosnia V. Serbia: Lessons From The Encounter Of The International Court Of Justice With The International Criminal Tribunal For The Former Yugoslavia, Rebecca Hamilton, Richard J. Goldstone

Articles in Law Reviews & Other Academic Journals

This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ’s approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies.With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied …

The Movement Toward Early Case Handling In Courts And Private Dispute Resolution, John M. Lande

Faculty Publications

This article identifies early case handling (ECH) as an important general phenomenon in dispute system design theory and practice, catalogs the major ECH processes, and urges practitioners and policymakers to encourage use of and experimentation with ECH processes when appropriate.The key element of ECH is that people intentionally exercise responsibility for handling the case from the outset. ECH processes in courts include early case management procedures, differentiated case management systems, early neutral evaluation, and other early alternative dispute resolution (ADR) processes. ECH in the private sector includes ADR pledges and contract clauses, early case assessment and ADR screening protocols, settlement …

To Kill A Mockingbird Perspectives, Sherrilyn A. Ifill

Faculty Scholarship

"To Kill a Mockingbird" is one of the most influential and widely acclaimed legal novels in American history. It tells the story of a small-town white lawyer who is appointed to defend a black man accused of raping a white woman in 1930s Alabama. The lawyer, Atticus Finch, is one of the great legal heroes of American fiction. The story, told from the perspective of Atticus' daughter Scout, explores race, class, gender, family and law. Most of all it is a both critical and loving account of the white South. This article is a personal story about the influence of …

The Virginia Judicial System: Organization And Structure, W. Clark Williams Jr.

Law Faculty Publications

No abstract provided.

Reconfiguring Law Reports And The Concept Of Precedent For A Digital Age, Peter W. Martin

Cornell Law Faculty Publications

Adherence to the “rule of law” entails a strong commitment to consistency - a belief that throughout a jurisdiction and across time judges should treat like cases alike. For over a century, the U.S. judiciary's pursuit of this aim has relied principally upon print law reports. With unsettling rapidity, digital technology has dislodged that system, in practical fact, if not yet in the way lawyers and judges talk and think about case law. This article explores gains one might hope for from a “judicial consistency” system liberated from the constraints of print, likely effects on concepts of precedent, as well …

A New (And Better) Interpretation Of Holmes's Prediction Theory Of Law, Anthony D'Amato

Faculty Working Papers

Holmes's famous 1897 theory that law is a prediction of what courts will do in fact slowly changed the way law schools taught law until, by the mid-1920s legal realism took over the curriculum. The legal realists argued that judges decide cases on all kinds of objective and subjective reasons including precedents. If law schools wanted to train future lawyers to be effective, they should be exposed to collateral subjects that might influence judges: law and society, law and literature, and so forth. But the standard interpretation has been a huge mistake. It treats law as analogous to weather forecasting: …

The Challenge Of Comparative Civil Procedure, Scott Dodson

Faculty Publications

This Essay reviews Civil Litigation in Comparative Context (West 2007), by Oscar G. Chase, Helen Hershkoff, Linda Silberman, Yasuhei Taniguchi, Vincenzo Varano, and Adrian Zuckerman. It also identifies some areas of exceptionalist American civil procedure that recently have been converging towards global norms and argues that those convergences, if they continue, could render comparative studies particularly meaningful.

The Many Meanings Of "Politics" In Judicial Decision Making, Bradley W. Joondeph

Faculty Publications

This essay seeks to untangle the many possible meanings of "politics" in descriptions of judicial behavior. Part I sets out ten possible conceptions of the term, briefly discussing some examples and their empirical foundations. My goal is mostly descriptive (rather than normative), though it is apparent that some conceptions are more useful than others. In all events, claims about the political influences on judicial behavior must be specific about the phenomena they seek to describe. For given the many possible meanings of politics, accounts that lack such specificity are largely vacuous.

Part II builds on this discussion to make two …

Bias In Judicial Citations: A Window Into The Behavior Of Judges?, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

This article tests for the presence of bias in judicial citations within federal circuit court opinions. Our findings suggest bias along three dimensions. First, judges base outside-circuit citation decisions in part on the political party of the cited judge. Judges tend to cite judges of the opposite political party less often than would be expected considering the fraction of the total pool of opinions attributable to judges of the opposite political party. Second, judges are more likely to engage in biased citation practices in certain high-stakes situations. These high-stakes situations include opinions dealing with certain subject matters (such as individual …

Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne

Faculty Scholarship

This examination compares several successful constitutions formulated to govern countries just formed from the conclusion of armed conflicts (including the U.S.). Some of the most important elements gleaned from these successful constitutions include an independent court before which one may appeal to the new constitution because such a constitution adequately secures the integrity of the court itself.

Administrative Law Agonistes, Mathew D. Mccubbins, Roger Noll, Barry R. Weingast, Daniel B. Rodriguez

Faculty Scholarship

No abstract provided.

Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris

Faculty Scholarship

On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars of economic loss. The next day, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and recognizing the right of states to use armed force in self defense.

Construing The National Labor Relations Act The Nlrb And Method Of Statutory Construction, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Inside The Box - When Exercising Peremptory Challenges, Attorneys Should Keep In Mind The Three-Step Framework Of Batson/Wheeler, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Assumptions Behind The Assumptions In The War On Terror: Risk Assessment As An Example Of Foundational Disagreement In Counterterrorism Policy, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, …

An Empirical Investigation Into Appellate Structure And The Perceived Quality Of Appellate Review, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

Commentators have theorized that several factors may improve the process, and thus perhaps the accuracy, of appellate review: (1) review by a panel of judges, (2) subject-matter expertise in the area of the appeal, (3) other law-finding ability, (4) adherence to traditional notions of appellate hierarchy, and (5) the judicial independence of appellate judges. The considerable discussion that has expounded upon these theories has occurred in a vacuum of abstract generalization. This Paper adds a new dimension by presenting results from an empirical study of bankruptcy appellate opinions issued over a three-year period. The federal bankruptcy appellate structure provides certain …

Pfo Law Reform, A Crucial First Step Towards Sentencing Sanity In Kentucky, Robert G. Lawson

Law Faculty Scholarly Articles

The purpose of this article is to engage in some analysis and discussion of the part of this sentencing law that cries out loudest for reform (the state's persistent felony offender law), reform that in short order would begin to deflate the population that has our prisons and jails grossly overcrowded. In this analysis and discussion, there is some brief consideration of the justifications used to support repeat offender laws (Part I), a segment on the history and evolution of Kentucky's law (Part II), an examination of a selection of repeat offender laws from other states (Part III), a report …

Cox, Halprin, And Discriminatory Municipal Services Under The Fair Housing Act, Robert G. Schwemm

Law Faculty Scholarly Articles

This Article deals with Cox v. City of Dallas, Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n, and the issue of whether the Federal Fair Housing Act (FHA) should be interpreted to outlaw discrimination in the provision of services by local governments. Part I describes the Cox litigation and its connection with Halprin. Part II surveys the pre-Cox cases that have dealt with discriminatory municipal services. Part III analyzes the FHA's relevant provisions and their legislative history and concludes that Cox and Halprin were wrong to deny FHA protection to current residents. Part IV …

Court-System Transparency, Lynn M. Lopucki

UF Law Faculty Publications

This article applies systems analysis to two ends. First, it identifies simple changes that would make the court system transparent. Second, it projects transparency's consequences. Transparency means that both the patterns across, and details of, case files are revealed to policymakers, litigants, and the public in easily understood forms. Government must make two changes to achieve court system transparency. The first is to remove the existing restrictions on the electronic release of court documents, including the requirements for registration, separate requests for each document, and monetary payment. The second - already being implemented in the federal courts - is to …

Health Courts?, Philip G. Peters Jr.

Faculty Publications

This article undertakes the first detailed critique of the proposal from Common Good and the Harvard School of Public Health to replace medical malpractice jury trials with adjudication before specialized health courts. Professor Peters concludes that the modest benefits likely to be produced by the current health court proposal are matched by the risks of bias and overreaching that these courts would also present. Missing from the plan is the doctrinal change mostly likely to improve patient safety - hospital enterprise liability. Without enterprise liability, the health court proposal is unlikely to achieve its patient safety goals and, as a …

The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod

Faculty Articles

Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.

The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …