Law Commons^™

The Future Of Problem-Solving Courts: Inside The Courts And Beyond, Stacy Lee Burns

Stacy Lee Burns

No abstract provided.

Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross

Bertrall L Ross

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court …

Anarquismo Judicial E Teoria Dos Times, Ivo T. Gico Jr.

Ivo Teixeira Gico Jr.

By interpreting legal certainty as a form of capital, the legal capital, the social consequences of the absence of coordination mechanisms between judges to create and maintain the law is analyzed, specially the resulting judicial anarchism. A team model indicates that Brazilian judges do not have enough incentives and mechanisms to invest in legal capital and to unify legal rules. Henceforth, legal uncertainty is expected in all areas of law, except those where there is some degree of ideological convergences between judges.

The Rehnquist Court And Criminal Procedure, Stephen F. Smith

Stephen F. Smith

No abstract provided.

Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith

Stephen F. Smith

No abstract provided.

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Jeffrey A. Pojanowski

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

(Dys)Functionality, Mark Mckenna

Mark P. McKenna

The functionality doctrine serves a unique role in trademark law: unlike virtually every other doctrine, functionality can trump consumer confusion (or so it seems, at least in mechanical-functionality cases). In this sense, functionality may be the only doctrine in trademark law that can truly be considered a defense. But despite its potential power, the functionality doctrine is quite inconsistently applied. This is true of mechanical functionality cases because courts differ over the extent to which the doctrine focuses on competitors’ right to copy unpatented features as opposed to their need to copy. And aesthetic functionality cases are even more scattered: …

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Judith L Ritter

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

Congress's Power To Block Enforcement Of Federal Court Orders, Jennifer Mason Mcaward

Jennifer Mason McAward

This Article considers the constitutionality and propriety of recent appropriations riders passed by the House of Representatives in response to controversial federal court rulings. The riders prohibit the use of any federal funds for the enforcement of court orders issued in specified cases. These enforcement-blocking provisions raise significant separation-of-powers concerns as between Congress and both coordinate branches of the federal government. The Article begins by looking at the controversial First Amendment rulings that triggered the enforcement-blocking riders, and the Congressional debates over the proper way to respond to the rulings. The riders are not merely symbolic protests, but could have …

Administrative Change, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative …

Cooperating With The Prosecutor: How Many Motions Does It Take To Secure A Sentence That Is Less Than The Mandatory Minimum Provided By Statute?, Jimmy Gurule

Jimmy Gurule

No abstract provided.

The Double Jeopardy Dilemma: Does Criminal Prosecution And Civil Forfeiture In Separate Proceedings Violate The Double Jeopardy Clause?, Jimmy Gurule

Jimmy Gurule

No abstract provided.

Justice Delayed Is Justice Denied: May A Prisoner's Challenge To Parole Revocation Be Delayed Until The Sentence Is Completed And Then Dismissed As Moot?, Jimmy Gurule

Jimmy Gurule

No abstract provided.

Multiple Punishment For Similar Crimes: Is The Double Jeopardy Clause Violated?, Jimmy Gurule

Jimmy Gurule

No abstract provided.

Who Pays The Piper If You Cut Into The Dance? An Analysis Of Independent Federation Of Flight Attendants V. Zipes, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Indpendent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989). The author expected the Court to address what standard the courts should apply in deciding whether to assess attorney's fees against an unsuccessful intervenor in federal employment discrimination cases.

Labor Racketeering And Labor Law: State Regulation V. Federal Rights: An Analysis Of Brown V. Hotel And Restaurant Employees Union Local 54, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Brown v. Hotel and Restaurant Employees, 468 U.S. 491 (1984). The author expected the Court to decide which interest prevails where there is a conflict between New Jersey's regulation of labor unions in order to reduce the influence of organized crime in the labor sector and federally granted rights to organize and bargain collectively.

Free Speech And Compulsory Union Fees: An Analysis Of Lehnert V. Ferris Faculty Association, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991). The author expected the case to address the line between those types of activities that effectuate a union's duties as collective bargaining representative, and thus can be charged to non-members, and those activities that are not related to collective bargaining and therefore are not chargeable to objecting non-members.

Does Title Vii Apply In Saudi Arabia? An Analysis Of Eeoc V. Arabian American Oil Co., Barbara J, Fick

Barbara J. Fick

This article previews the Supreme Court case EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991). The author expected the Court to decied whether Congress intended the mandates of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination to extend extraterritorially.

Time Is Money--But Is It Compensable Work? An Analysis Of Ibp, Inc. V. Alvarez, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case IBP, Inc. v. Alvarez, 546 U.S. 21 (2005). The issues raised in that case were: Is the time employees spend walking and waiting in line during the process of donning and doffing required safety equipment considered compensable work such that employers must pay them for that time?

Does A Conspiracy To Terminate At-Will Employment Constitute An Injury To Property? An Analysis Of Haddle V. Garrison, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Haddle v. Garrison, 525 U.S. 121 (1998). The author expected the Court to determine whether the termination of an at-will employee can be compensible under 42 U.S.C. § 1985, one of the Reconstruction Era Civil Rights Act.

Will The Supreme Court Sound The Death Knell For Political Patronage? An Analysis Of O'Hare Truck Services, Inc. V. City Of Northlake, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case O'Hare v. City of Northlake, 518 U.S. 712 (1996). The author expected the Court to analyze whether political patronage infringes on First Amendment rights.

Peer Review: I'Ll Give You My Opinion If You Don't Tell Anyone What It Is: An Analysis Of University Of Pennsylvania V. Eeoc, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case University of Pennsylvania v. EEOC, 493 U.S. 192 (1990). The author expected the Court to decide whether the EEOC may subpeopna peer review documents submitted to a university tenure committee when investigating charges that the committee engaged in impermissible discrimination when denying tenure to an associate professor.

How To Count To Fifteen: Determining The Jurisdictional Scope Of Title Vii: An Analysis Of Walters V. Metropolitan Educational Enterprises Inc., Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202 (1997). The author expected the Court to consider how the number of employees of a particular employer should be counted for for purposes of Title VII of the Civil Rights Act of 1964.

What Is The Time Limit For Filing A Lawsuit? It Depends On What Your Definition Of "Arising Under" Is! An Analysis Of Jones V. R.R. Donnelley & Sons Co., Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Jones et. al. v. R.R. Donnelly & Sons Co., 541 U.S. 369 (2004). The author predicted that the case would require the court to determine the appropriate statute of limitations to apply in a class action race-discrimination lawsuit filed under 42 U.S.C. § 1981.

Can Mother Vote In The Union Election? The Board's Authority To Define The Appropriate Bargaining Unit: An Analysis Of Nlrb V. Action Automotive, Inc., Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case NLRB v. Action Automotive, Inc., 469 U.S. 490 (1985). The author expected the Court to address whether the NLRB can exclude from the bargaining unit an employee-relative of the owners/managers of a closely held corporation when that employee does not enjoy any special work benefits because of that relationship.

Does Title Ix Protect Academic Whistle Blowers? An Analysis Of Jackson V. Birminghan Board Of Education, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005). The author expected the Court to decide whether Title IX's ban on discrimination allows a private individual to sue for retaliation when a recipient of federal funds engages in adverse action against that individual because of his complaints that the recipient is violating Title IX?

Pretext Or Pretext-Plus: What Must A Plaintiff Prove To Win A Title Vii Lawsuit? An Analysis Of St. Mary's Honor Center V. Hicks, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The author expected the Court to address whether, in the context of an employment discrimination case under Title VII of the Civil Rights Act of 1964, a plaintiff should prevail upon proof that the legitimate, non-discriminatory reasons advanced by the defendant as its motives for an adverse employment action are pretextural.

An Independent Contractor Speaks His Mind: Can He Lose His Government Contract? An Analysis Of Heiser V. Umbehr, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Heiser v. Umbehr, 515 U.S. 1172 (1995). The author expected the Court to consider whether, and to what extent, a governmental unit can take into account an independent contractor's poltical speech in making decisions regarding the award or termination of government contracts.

Mixed Up About Mixed Motive: What Will Trigger A "Mixed Motive" Analysis In Title Vii Cases? An Analysis Of Desert Palace, Inc. V. Costa, Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Desert Palace, Inc. v. Costa, 539 U.S. 90, 2003. The author expected the Court to clarify and define the circumstances in which it is appropriate to use the "mixed-motive model" to prove a violation of Title VII under the disparate treatment theory.

Musical Courts: Plaintiff Picks A Court But Can Defendant Trump The Choice? An Analysis Of Breuer V. Jim's Concrete Of Brevard, Inc., Barbara J. Fick

Barbara J. Fick

This article previews the Supreme Court case Brewer v. Jim's Concrete of Brevard, 538 U.S. 691 (2003). The author expected the Court to address the issue of whether the language of the Fair Labor Standards Act providing that "an action . . . may be maintained in any federal or state court" constitutes an express provision prohibiting removal to federal court when the plaintiff has chosen to maintain its lawsuit in state court.