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Articles 1 - 13 of 13
Full-Text Articles in Law
Citizen Participation In Judicial Decision Making: Juries, Lay Judges And Japan, Richard O. Lempert
Citizen Participation In Judicial Decision Making: Juries, Lay Judges And Japan, Richard O. Lempert
Articles
In the late 1920s and 1930s Japan had a jury system. It was suspended in 1943 as a wartime measure, but it had fallen into desuetude long before that. Arguably it was like the Spanish jury, which has several times risen during periods of relative political liberalism or populism and been suppressed during periods of militarism and autocracy. That is, it may be more than a coincidence that use of the Japanese jury fell precipitously during the 1930s as militarism took hold of the Japanese nation. Now the reinstatement of the Japanese jury is again being seriously considered. Similarly it …
The Struggle For Sex Equality In Sport And The Theory Behind Title Ix, Deborah Brake
The Struggle For Sex Equality In Sport And The Theory Behind Title Ix, Deborah Brake
Articles
Title IX's three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test's relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. …
Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker
Miranda And Some Puzzles Of 'Prophylactic' Rules, Evan H. Caminker
Articles
Constitutional law scholars have long observed that many doctrinal rules established by courts to protect constitutional rights seem to "overprotect" those rights, in the sense that they give greater protection to individuals than those rights, as abstractly understood, seem to require.' Such doctrinal rules are typically called "prophylactic" rules.2 Perhaps the most famous, or infamous, example of such a rule is Miranda v. Arizona,' in which the Supreme Court implemented the Fifth Amendment's privilege against self-incrimination4 with a detailed set of directions for law enforcement officers conducting custodial interrogations, colloquially called the Miranda warnings. 5
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Free-Standing Due Process And Criminal Procedure: The Supreme Court's Search For Interpretive Guidelines, Jerold H. Israel
Articles
When I was first introduced to the constitutional regulation of criminal procedure in the mid-1950s, a single issue dominated the field: To what extent did the due process clause of the Fourteenth Amendment impose upon states the same constitutional restraints that the Fourth, Fifth, Sixth and Eighth Amendments imposed upon the federal government? While those Bill of Rights provisions, as even then construed, imposed a broad range of constitutional restraints upon the federal criminal justice system, the federal system was (and still is) minuscule as compared to the combined systems of the fifty states. With the Bill of Rights provisions …
Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross
Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross
Articles
In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Articles
Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Federalism, Preclearance, And The Rehnquist Court, Ellen D. Katz
Articles
Lopez v. Monterey County is an odd decision. Justice O'Connor's majority opinion easily upholds the constitutionality of a broad construction of section 5 of the Voting Rights Act (VRA) in language reminiscent of the Warren Court. Acknowledging the "substantial 'federalism costs" resulting from the VRA's "federal intrusion into sensitive areas of state and local policymaking," Lopez recognizes that the Reconstruction Amendments "contemplate" this encroachment into realms "traditionally reserved to the States." Justice O'Connor affirms as constitutionally permissible the infringement that the section 5 preclearance process "by its nature" effects on state sovereignty, and applies section 5 broadly, holding the statute …
Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman
Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman
Articles
The Supreme Court's decision in Bush v. Gore, shutting down the recounts of Florida's vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous.' Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner's analysis,2 in which he defends the result reached by the Court-though not the path by which it got there-is particularly welcome. Though …
Good Faith And The Cooperative Antagonist (Symposium On Revised Article 1 And Proposed Revised Article 2 Of The Uniform Commercial Code), James J. White
Good Faith And The Cooperative Antagonist (Symposium On Revised Article 1 And Proposed Revised Article 2 Of The Uniform Commercial Code), James J. White
Articles
One of Karl Llewellyn's most noted achievements in the Uniform Commercial Code was to impose the duty of good faith on every obligation under the Uniform Commercial Code.1 Some (I am one) have privately thought that imposition of this unmeasurable, undefinable duty was Llewellyn's cruelest trick, but no court, nor any academic writer, has ever been so bold or so gauche as to suggest that good faith should not attend the obligations of parties under the UCC. Notwithstanding this silent indorsement of the duty of good faith, the courts2 and commentators3 have had difficulty in determining what is and what …
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
Articles
A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
Articles
With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five's legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five's permissible …
Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan
Judicial Review Of Member-State Regulation Of Trade Within A Federal Or Quasi-Federal System: Protectionism And Balancing, Da Capo, Donald H. Regan
Articles
The topic of this Essay is not one Terry Sandalow has worked on, but he got me started on it by organizing, with Eric Stein, the Bellagio Conference on comparative constitutional economic integration in the United States and the European Community. For that, and for thirty-three years during which he has been an unfailingly stimulating and supportive colleague, Dean, and friend, I am deeply grateful.
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
Articles
Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.