Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Institution
- Publication
- Publication Type
Articles 1 - 17 of 17
Full-Text Articles in Law
Re-Examining Customary International Law And The Federal Courts: An Introduction, Anthony J. Bellia
Re-Examining Customary International Law And The Federal Courts: An Introduction, Anthony J. Bellia
Journal Articles
Legal scholars have debated intensely the role of customary international law in the American federal system. The debate involves serious questions surrounding the United States's constitutional structure, foreign relations, and human rights. Despite an impressive body of scholarship, the debate has stood at an impasse in recent years, without either side garnering a consensus. This symposium–Re-examining Customary International Law and the Federal Courts–aspires to help advance the debate over the status of customary international law in the federal courts.
The symposium received thoughtful and constructive contributions from Professors Curtis A. Bradley, Bradford R. Clark, Andrew Kent, Carlos M. Vizquez, and …
Strategic Enforcement, Alex Stein, Margaret H. Lemos
Strategic Enforcement, Alex Stein, Margaret H. Lemos
Alex Stein
Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law-enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number of violators and heightening their penalties so as to make violations unattractive. This Article supplements this list of options by developing a strategic model of law enforcement. Under this model, law enforcers concentrate their effort on the worst, or most rampant, violators at a given point in time while leaving all others unpunished. This enforcement …
Criminal Law And Procedure, Virginia B. Theisen, Stephen R. Mccullough
Criminal Law And Procedure, Virginia B. Theisen, Stephen R. Mccullough
University of Richmond Law Review
The authors have endeavored to select from the many cases and bills those that have the most significant practical impact on the daily practice of criminal law in the Commonwealth. Due to space constraints, the authors have stayed away from discussing settled principles, with a focus on the "take away" for a particular case.
Local Rules And The Limits Of Trans-Territorial Procedure, Samuel P. Jordan
Local Rules And The Limits Of Trans-Territorial Procedure, Samuel P. Jordan
William & Mary Law Review
No abstract provided.
Discoverability Of Private Investigator Surveillance In South Carolina: Navigating The Work Product Doctrine Under Samples V. Mitchell, Bradford J. Gower
Discoverability Of Private Investigator Surveillance In South Carolina: Navigating The Work Product Doctrine Under Samples V. Mitchell, Bradford J. Gower
South Carolina Law Review
No abstract provided.
Should A Scintilla Be Enough - The Proper Standard For Summary Judgment In South Carolina, Aaron J. Hayes
Should A Scintilla Be Enough - The Proper Standard For Summary Judgment In South Carolina, Aaron J. Hayes
South Carolina Law Review
No abstract provided.
The Managerial Judge Goes To Trial, Elizabeth G. Thornbug
The Managerial Judge Goes To Trial, Elizabeth G. Thornbug
University of Richmond Law Review
No abstract provided.
Conley As A Special Case Of Twombly And Iqbal: Exploring The Intersection Of Evidence And Procedure And The Nature Of Rules, Ronald Allen
Conley As A Special Case Of Twombly And Iqbal: Exploring The Intersection Of Evidence And Procedure And The Nature Of Rules, Ronald Allen
Ronald Allen
Two recent Supreme Court cases, Iqbal and Twombly, have caused a storm of criticism from civil proceduralists to the effect that the cases have changed the meaning of FRCP 8 outside of the Rules Enabling Act process; undercut the transsubstantive aspirations of the procedural system; breached the procedure-evidence divide inappropriately; will result in idiosyncratic trial court judgments based on bias and caprice; and have imposed an unworkable if not incomprehensible standard of plausibility on pleadings. The storm of criticism is fueled in no small part because of the awkwardness of the Court’s opinions. These cases look considerably different if viewed …
Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl
Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl
Popular Media
No abstract provided.
Portraits Of Resistance: Lawyer Responses To Unjust Proceedings, Alexandra Lahav
Portraits Of Resistance: Lawyer Responses To Unjust Proceedings, Alexandra Lahav
Alexandra D. Lahav
This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own. …
Law, Facts, And Power, Elizabeth Thornburg
Law, Facts, And Power, Elizabeth Thornburg
Beth Thornburg
The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself—both in the already notorious pleading section of the opinion, and in the much-less-noted …
Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, Benjamin V. Madison Iii
Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, Benjamin V. Madison Iii
Benjamin V Madison, III
This article explores the role of procedural institutions, both in the Constitution and in other laws related to the judicial system, that promote impartial justice. The article explores the twin principles of human fallibility and the equality of all human beings as the fundamental bases of the judicial system. The role of procedure in enabling federal courts to enforce the Supreme Court's decision in Brown v. Board of Education is a featured part of the article.
Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth
Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth
Georgetown Law Faculty Publications and Other Works
This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …
Blind Expertise, Christopher Robertson
Blind Expertise, Christopher Robertson
Faculty Scholarship
The United States spends many billions of dollars on its system of civil litigation, and expert witnesses appear in a huge portion of cases. Yet litigants select and retain expert witnesses in ways that create the appearance of biased hired guns on both sides of every case, thereby depriving factfinders of a clear view of the facts. As a result, factfinders too often arrive at the wrong conclusions, thus undermining the deterrence and compensation functions of litigation. Court-appointment of experts has been widely proposed as a solution, yet it raises legitimate concerns about accuracy and has failed to gain traction …
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Journal Articles
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Anatomy Of The First Public International Sports Arbitration And The Future Of Public Arbitration After Usada V. Floyd Landis, Maureen A. Weston Prof.
Anatomy Of The First Public International Sports Arbitration And The Future Of Public Arbitration After Usada V. Floyd Landis, Maureen A. Weston Prof.
Maureen A Weston
Mere weeks after American professional cyclist Floyd Landis seemingly won the 2006 Tour de France, the United States Anti-Doping Association (USADA), under the authority granted to it by the U.S. Congress, and through its enforcement of the World Anti-Doping Code (WADC), accused him of having committed doping violations during the race. Landis vehemently denied these allegations, and accused the French laboratory that had performed the testing of his post-race samples, the Laboratoire National du Depistage du Dopage (LNDD), of bias and misconduct in his case.
Under USADA rules, an American athlete accused of doping may request an arbitration hearing before …