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Articles 781 - 810 of 2333

Full-Text Articles in Law

The Promise Of A Cooperative And Proportional Discovery Process In North Carolina: House Bill 380 And The New State Electronic Discovery Rules, Brian C. Vick, Neil C. Magnuson Jan 2012

The Promise Of A Cooperative And Proportional Discovery Process In North Carolina: House Bill 380 And The New State Electronic Discovery Rules, Brian C. Vick, Neil C. Magnuson

Campbell Law Review

Using the experience of the federal courts under the 2006 Amendments as a guide, this Article examines H.B. 380 and the effect it will have on the discovery process in the state courts. Part I of this Article describes the litigation challenges created by the proliferation of ESI. Part II describes the history, structure and substance of the 2006 Amendments, and discusses their impact in the areas of cooperation and the use of proportionality principles in the federal courts. Part III describes the substance and structure of the rules changes encompassed by H.B. 380, and analyzes the effect that they …

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Batson Revisited (Symposium), Nancy S. Marder Jan 2012

Batson Revisited (Symposium), Nancy S. Marder

All Faculty Scholarship

The twenty-fifth anniversary of Batson v. Kentucky provides an important moment to reflect on Batson and to consider how this seminal case and its progeny have affected the use and abuse of peremptory challenges. I had initially welcomed the U.S. Supreme Court’s approach to peremptory challenges in Batson back in 1986. Although Batson was a compromise—preserving peremptories while seeking to address discriminatory peremptories—it had the noble goal of trying to eliminate discrimination during jury selection. I also embraced its expansion over the years. The logic of Batson was inexorable: just as prosecutors should not be permitted to use peremptories to …

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The Conundrum Of Cameras In The Courtroom, Nancy S. Marder Jan 2012

The Conundrum Of Cameras In The Courtroom, Nancy S. Marder

All Faculty Scholarship

In spite of a communications revolution that has given the public access to new media in new places, the revolution has been stopped cold at the steps to the U.S. federal courthouse. The question whether to allow television cameras in federal courtrooms has aroused strong passions on both sides, and Congress keeps threatening to settle the debate and permit cameras in federal courts. Proponents of cameras in federal courtrooms focus mainly on the need to educate the public and to make judges accountable, whereas opponents focus predominantly on the ways in which cameras can affect participants’ behavior and compromise the …

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Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera Jan 2012

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

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Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong Jan 2012

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Publications

This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …

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Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weaknesses Of Consequentialism, Todd E. Pettys Jan 2012

Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weaknesses Of Consequentialism, Todd E. Pettys

Todd E. Pettys

From Alaska to Florida, the 2010 election season brought the nation an unprecedented number of organized campaigns aimed at denying retention to judges who had ruled in ways that some voters found objectionable. Judges in those and other retention-election states can no longer rest comfortably on the assumption that voters will routinely exempt them from meaningful scrutiny. Anxious judges, state bar officials, and others have responded with a set of deontological and consequentialist arguments aimed at persuading voters not to use retention elections as an opportunity to oust judges who have issued controversial rulings. The deontological arguments posit that ousting …

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The Vinson Court And The Idol Of Restraint, Zachary Baron Shemtob Jan 2012

The Vinson Court And The Idol Of Restraint, Zachary Baron Shemtob

Zachary Shemtob

Few judicial attributes elicit greater praise than self-restraint. Yet the most restrained court of the twentieth century, that of Chief Justice Frederick M. Vinson, is generally considered a failure. This paper first analyzes the Vinson Court’s adherence to restraint. I then argue why this judicial philosophy is largely responsible for this Court’s poor legacy. I conclude by considering what this says about the nature of judicial restraint itself.

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It's Well Past Time To Talk Turkey: The Rule Of Twenty-Four And The Rule Of One Hundred, David D. Butler Jan 2012

It's Well Past Time To Talk Turkey: The Rule Of Twenty-Four And The Rule Of One Hundred, David D. Butler

David D. Butler

The only question is who decides. The mob, the army, the people, the Congress, or the judges are not right because they are right, they are right because they are final. Lenin - the terrorist and not the pop star - said, "If a man says 'A.' he says 'B.'" If you celebrate Brown versus Board, you inevitably celebrate Dred Scott versus Sanford and Plessy versus Furgerson. This article argues that it it time, indeed, past time, for America to abandon lifetime federal judges and with them the poison of affirmative action and school busing.

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Imbrication Of Legal And Expert Discourses On Monoparental Adoptive Processes, Raquel Medina Plana Jan 2012

Imbrication Of Legal And Expert Discourses On Monoparental Adoptive Processes, Raquel Medina Plana

Raquel Medina Plana

Long and complex, international adoption processes can be seen as constituting a set of performative practices which involve strategies of transmission/ incorporation of culture, implying the construction of relational identities or subjectivities. With an “educational” drive, and a strong uniformity aspiration, the relevant institutions would be constructing a unified kind of adoptive parenthood, not just in their public dimension but also on the more intimate identity configuration level: the emotional life, affections, expectations, personal history… (Borrillo and Pitois-Etienne, 2004). When confronted with “non-traditional” family projects (as it is the case with monoparental adoption), adoptive processes perform a strong governmental control …

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Do We Have 18th Century Courts For The 21st Century, Michael Buenger Jan 2012

Do We Have 18th Century Courts For The 21st Century, Michael Buenger

Michael Buenger

State courts continue to face both funding and political challenges. In light of these challenges state court leaders, the bar and legal educators should undertake a serious rethinking of our state courts along three thematic lines: (1) systemic reorganization to reduce fragmentation, simplify access, and provide greater flexibility and specialization in the use of resources; (2) diversification of dispute resolution processes so that cases move in different directions with a range of resolution options pegged to the issues presented; and (3) rationalization of governance, leadership, and accountability systems to enhance effective organizational management of complex institutions.

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The Revolution In Family Law Dispute Resolution, John Lande Jan 2012

The Revolution In Family Law Dispute Resolution, John Lande

John Lande

In the past fifty years, the revolution in American family law led to a revolution in family law dispute resolution. Virtually every aspect of divorce law has been transformed since the Mad Men era, including grounds for divorce, characterization of marital property, child custody presumptions, and alimony and child support rules. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle. In this period, family courts struggled with an increased volume of cases and ambiguous rules. They found that the tools of litigation were poorly suited to handle most …

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The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning Jan 2012

The Case Against Appointing Politicians To The Supreme Court, Brannon P. Denning

Brannon P. Denning

In this brief comment on Ben Barton's "An Empirical Study of Supreme Court Justice Pre-Appointment Experience," I argue that appointing persons currently or formerly active in partisan politics would likely not benefit the Court as some have claimed and might affirmatively harm the Court as an institution.

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Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent Jan 2012

Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent

Brannon P. Denning

Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …

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Secularization By Incorporation: Corporate Identity And The Religious Corporation, Bruce B. Jackson Jan 2012

Secularization By Incorporation: Corporate Identity And The Religious Corporation, Bruce B. Jackson

Bruce B Jackson

First Amendment Religion Clause doctrine applicable to a religious organization’s internal property dispute offers civil courts an option. Provided the controversy does not involve religious doctrine, a civil court may either defer to a religious organization’s governing body, or, resolve the matter itself by applying neutral principles of law. Application of the doctrine requires a civil court to treat religious corporations with a hierarchical form of government differently from those with a congregational form of government. For religious corporations that are hierarchically organized and governed, a normative Religion Clause analysis requires a civil court to defer to the decision of …

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Are United States Courts Receptive To International Arbitration?, Todd Weiler, Heather Bray, Devin Bray Jan 2012

Are United States Courts Receptive To International Arbitration?, Todd Weiler, Heather Bray, Devin Bray

American University International Law Review

No abstract provided.

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The Arbitrator's Deliberation, Yves Derains Jan 2012

The Arbitrator's Deliberation, Yves Derains

American University International Law Review

No abstract provided.

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Constitution Day 2012: The American Judiciary, Robert Berry Jan 2012

Constitution Day 2012: The American Judiciary, Robert Berry

Librarian Publications

Robert Berry, research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the role of the American Judiciary in interpreting laws of the United States government. The essay was written for the occasion of Constitution Day 2012 at Sacred Heart University.

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Islam In The Mind Of American Courts, Marie Failinger Jan 2012

Islam In The Mind Of American Courts, Marie Failinger

Faculty Scholarship

This article surveys references to Islam and Muslims in American court opinions from 1800 to 1960. It argues that American judges as a group portray an ambivalent attitude toward Muslims, some treating Islam disparagingly or as an exotic and fanciful religion, and others emphasizing the religious equality that Muslims deserve

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Families Now: What We Don't Know Is Hurting Us, Judith T. Younger Jan 2012

Families Now: What We Don't Know Is Hurting Us, Judith T. Younger

Hofstra Law Review

No abstract provided.

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Why Mortgage "Formalities" Matter, David A. Dana Jan 2012

Why Mortgage "Formalities" Matter, David A. Dana

Faculty Working Papers

This Article argues that adherence to mortgage formalities regarding foreclosure is valuable for expressive reasons and also as a potential deterrent to future undesirable underwriting and securitization practices. The Article reviews how some courts have in effect written procedural requirements for foreclosure out of the law, and asks why these courts have done so and whether lenders' behavior might have been improved during this housing crisis had the state courts uniformly afforded equal respect to the legal rights of homeowners and those of lenders.

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The Multiple Roles Of International Courts And Tribunals: Enforcement, Dispute Settlement, Constitutional And Administrative Review, Karen J. Alter Jan 2012

The Multiple Roles Of International Courts And Tribunals: Enforcement, Dispute Settlement, Constitutional And Administrative Review, Karen J. Alter

Faculty Working Papers

This chapter is part of an upcoming interdisciplinary volume on international law and politics. The chapter defines four judicial roles states have delegated to international courts (ICs) and documents the delegation of dispute settlement, administrative review, enforcement and constitutional review jurisdiction to ICs based on a coding of legal instruments defining the jurisdiction of 25 ICs. I show how the design of ICs varies by judicial role and argue that the delegation of multiple roles to ICs helps explain the shift in IC design to include compulsory jurisdiction and access for nonstate actors to initiate litigation. I am interested in …

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Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich Jan 2012

Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich

Faculty Working Papers

Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …

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The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander Jan 2012

The Chief Or The Court: Article Ii And The Appointment Of Inferior Judicial Officers, James E. Pfander

Faculty Working Papers

Each year, the Chief Justice of the United States makes a number of appointments to offices within the Article III judicial establishment. On its face, such a Chief-based appointment practice seems hard to square with the text of Article II, which provides for the appointment of inferior officers by the "courts of law." Scholars have noted the switch from a court-based to a Chief-based appointment system, but generally regard the Chief's authority as constitutionally benign. This Essay explores the origins of the Constitution's choice of the "courts" as the repository of appointment power. The decision was made against the backdrop …

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Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash Jan 2012

Does Ideology Matter In Bankruptcy? Voting Behavior On The Courts Of Appeals, Rafael I. Pardo, Jonathan Remy Nash

Scholarship@WashULaw

This Article empirically examines the question of whether courts of appeals judges cast ideological votes in the context of bankruptcy. The empirical study is unique insofar as it is the first to specifically examine the voting behavior of circuit court judges in bankruptcy cases. More importantly, it focuses on a particular type of dispute that arises in bankruptcy - debt-dischargeability determinations. The study implements this focused approach in order to reduce heterogeneity in result. We find, contrary to our hypotheses, no evidence that circuit court judges engage in ideological voting in bankruptcy cases. We do find, however, non-ideological factors - …

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War Powers, Foreign Affairs, And The Courts: Some Institutional Considerations, Jonathan L. Entin Jan 2012

War Powers, Foreign Affairs, And The Courts: Some Institutional Considerations, Jonathan L. Entin

Case Western Reserve Journal of International Law

No abstract provided.

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Case Management In The Circuit Courts, Marin K. Levy Jan 2012

Case Management In The Circuit Courts, Marin K. Levy

Faculty Scholarship

No abstract provided.

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Custody Rights Of Lesbian And Gay Parents Redux: The Irrelevance Of Constitutional Principles, Nancy Polikoff Jan 2012

Custody Rights Of Lesbian And Gay Parents Redux: The Irrelevance Of Constitutional Principles, Nancy Polikoff

Articles in Law Reviews & Other Academic Journals

Disputes over custody and visitation can arise when a marriage ends and one parent comes out as gay or lesbian. the heterosexual parent may seek custody or may seek to restrict the activities of the gay or lesbian parent, or the presence of the parent's same-sex partner, during visitation. A gay or lesbian parent's assertion of constitutional rights has not been an effective response to such efforts. that is not likely to change. Advocates for gay and lesbian parents have argued forcefully for a nexus text, permitting consideration of a parent's sexual orientation only when there is evidence of an …

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Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib Jan 2012

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Faculty Scholarship

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view: that …

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The Structural Exceptionalism Of Bankruptcy Administration, Rafael I. Pardo, Kathryn A. Watts Jan 2012

The Structural Exceptionalism Of Bankruptcy Administration, Rafael I. Pardo, Kathryn A. Watts

Scholarship@WashULaw

The current system of administration of the Bankruptcy Code is highly anomalous. It stands as one of the few major federal civil statutory regimes administered almost exclusively through adjudication in the courts, not through a federal regulatory agency. This means that rather than fitting bankruptcy into a regulatory model, Congress has chosen to give the courts primary interpretive authority in the field of bankruptcy, delegating to courts the power to engage in residual policymaking. Although scholars have noted some narrow aspects of the structural exceptionalism of bankruptcy administration, Congress’s decision to locate responsibility for bankruptcy policymaking almost exclusively with the …

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Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decisionmaking, Christine N. Cimini Jan 2012

Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decisionmaking, Christine N. Cimini

Articles

This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this Article identifies a uniform judicial reliance upon “fault-based” factors. This Article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decisionmaking modalities utilized …

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