Law Commons^™

Actions And Reactions: The Evolution Of Environmental Common Law And Judicial Activism In India And The United States, Elizabeth B. Fata

University of Miami International and Comparative Law Review

No abstract provided.

The Judicial Duty To Scrutinize Legislation, Randy E. Barnett

Valparaiso University Law Review

No abstract provided.

Analyzing Second Amendment Challenges: Getting Strict With Judges, Lauren Dwarika

Touro Law Review

No abstract provided.

Clash Of Old And New Fourth Circuit Ideologies: Boyer-Liberto V. Fontainebleau Corp. And The Moderation Of The Fourth Circuit, Brian S. Clarke

South Carolina Law Review

No abstract provided.

Judicial Dismissal In The Interest Of Justice, Valena E. Beety

Missouri Law Review

Of the 1.6 million Americans in prison, most inmates are serving sentences for non-violent offenses. Who is responsible? Hyper-incarceration is not simply due to outdated drug laws or stringent sentencing. Courts in the last thirty years have taken a lackadaisical back seat. Prosecutors are failing in their gate-keeping function nationally. Most simple arrests are prosecuted without even evaluating the substance of the case. Police stops can snowball into convictions through our plea system. In short, the criminal justice system provides no systemic accountability for its own results. This Article focuses on this lack of accountability and proposes a conceptual shift, …

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and its …

O'Connor's Firsts, Phyllis L. Crocker

Akron Law Review

Chief Justice Maureen O’Connor will make her mark on the Ohio court system and on the laws of Ohio in many ways. She made two significant marks her first day as Chief Justice: she was the first woman elected to the position of Chief Justice in Ohio and in her swearing-in speech she called for review of the death penalty in Ohio.1 Both were meaningful to me personally and as a citizen of Ohio. I appreciated her acknowledging her place in history and her willingness to tackle, right from the beginning of her tenure, the important topic of the death …

Chief Justice O'Connor's Juvenile Justice Jurisprudence: A Consistent Approach To Inconsistent Interests, Yvette Mcgee-Brown, Kimberly A. Jolson

Akron Law Review

Part II of this Article examines the growth of the juvenile justice system as a system apart from the adult criminal system. It reviews the goals of the juvenile court system—to treat children differently than adults, to rehabilitate, and to protect both the child and society. Part II also discusses the gradual movement to harsher sentencing of young offenders and transferring those offenders to the adult criminal justice system, as well as the subsequent exhortation of the United States Supreme Court that youth in the juvenile justice system must be afforded the protection of constitutional rights. Part III.A explains the …

City Of Norwood V. Horney - Much More Than Eminent Domain: A Forceful Affirmation Of The Independent Authority Of The Ohio Constitution And The Court's Power To Enforce It, Kathleen M. Trafford

Akron Law Review

individual’s protection under Ohio’s eminent domain law but also refines the judiciary’s approach to Ohio constitutional analysis. Part I will set forth the pre-Norwood standard of review in Ohio eminent domain law, which took an increasingly expansive approach to determining what constitutes public use out of deference to the legislature. It will outline the standard of review for eminent domain cases at the federal level following the United States Supreme Court’s holding in Kelo, which upheld the taking of private property for purely economic reasons. Finally, Part I discusses the facts and holding of Norwood, which struck down the taking …

Flexible Predictability: Stare Decisis In Ohio, Richard Garner

Akron Law Review

This Article explores the need for a doctrine permitting, but limiting, the overruling of prior precedent; Ohio’s adoption of such a rule; and whether the current standard will endure. To fully appreciate the need for a rule that permits but also limits the overruling of prior Supreme Court precedent, it is helpful to understand the historical context in which the Galatis rule developed. Section II of this Article discusses the political and ideological changes that swept the Ohio judiciary in the early 1990s with the election of two new Justices to the Ohio Supreme Court. The new Justices quickly set …

Judgment And Opportunity: Decision Assignment On The Mclachlin Court, Peter Mccormick

Dalhousie Law Journal

The workload of the Supreme Court of Canada is shared among the Court's nine members, but is this sharing equal with respect to the writing of judgments? A simple count does not provide an answer because not all cases are equally important. This paper develops an objective measure of case importance-the Legal Complexity Index-and applies it to the cases decided by the McLachlin Court. It demonstrates that judgment-delivery opportunities for significant cases have not been shared equally, either overall or with respect to any of the major subdivisions of the caseload. Some judges enjoy the spotlight, while others are relegated …

When Rules Are Made To Be Broken, Zev J. Eigen, David S. Sherwyn, Nicholas F. Menillo

Northwestern University Law Review

When do judges follow rules expected to produce unjust results, and when do they intentionally misapply such rules to avoid injustice? Judicial rule-breaking is commonly observed when national dignity and morality are at stake, such as abolitionist judges charged with applying federal fugitive slave laws, or when lives hang in the balance, such as applications of criminal sentencing rules. Much less is understood about judicial rule-breaking in quotidian civil litigation, in spite of the sizeable impact on litigants and potential litigants, as well as the frequency with which judges face such decisions. This Article is the first to theoretically assess …

Is There A Place For Religion In Judicial Decision-Making?, Hon. Kermit V. Lipez

Touro Law Review

No abstract provided.

When Judges Have Reasons Not To Give Reasons: A Comparative Law Approach, Mathilde Cohen

Washington and Lee Law Review

Influential theories of law have celebrated judicial reason-giving as furthering a host of democratic values, including judges’ accountability, citizens’ participation in djudication, and a more accurate and transparent decision-making process. This Article has two main purposes. First, it argues that although reason-giving is important, it is often in tension with other values of the judicial process, such as guidance, sincerity, and efficiency. Reason-giving must, therefore, be balanced against these competing values. In other words, judges sometimes have reasons not to give reasons. Second, contrary to common intuition, common law and civil law systems deal with this tension between reasons for …

Alternate Judges As Sine Qua Nons For International Criminal Trials, Megan A. Fairlie

Vanderbilt Journal of Transnational Law

When one of the three judges hearing the case against Vojislav Seselj at the International Tribunal for the former Yugoslavia (ICTY) was disqualified during the deliberations phase of the prosecution, many observers assumed that the multi-year trial would have to be re-heard. Instead, the ICTY opted to begin deliberations anew once a judge--who had not spent a single day participating in the proceeding--had familiarized himself with the trial record. This Article demonstrates why the plan to proceed with a new judge in Seselj's case was both procedurally illegitimate and markedly at odds with the ICTY's statutory guarantee of a fair …

Judges As Guardian Angels: The German Practice Of Hints And Feedback, Robert W. Emerson

Vanderbilt Journal of Transnational Law

The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge's roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States.

American …

Statutory Interpretations And The Therapy Of The Obvious, Edward L. Rubin

Vanderbilt Law Review

Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."' The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes. Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism," and his related effort to rule out reliance …

What Judges Want And Need: User-Friendly Foundations For Effective Judicial Education, Duane Benton, Jennifer A.L. Sheldon-Sherman

Journal of Dispute Resolution

This article evaluates the connection between judicial education and judges’ needs and preferences. In Part I, we begin by discussing the history, purpose, and form of judicial education, charting its evolution over time. In Part II, we examine current judicial education programs and scholarship, highlighting differences and similarities between federal and state programming. In Part III, we analyze the limitations of existing scholarship and programming, arguing judicial education programs are insufficiently tied to evidence of judicial demands. We conclude in Parts IV and V by suggesting two proposals to align programming with needs: (1) an annual needs-based assessment of judicial …

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Journal of Dispute Resolution

Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …

Of Judges, Law, And The River: Tacit Knowledge And The Judicial Role, Chad M. Oldfather

Journal of Dispute Resolution

“What does it mean to be a judge?” That’s a tall order, and one is tempted to begin—and perhaps to end—by formulating taxonomy of characteristics that judges ought to have. Indeed, that is a tactic that others have used. The resulting lists differ in their particulars, but are broadly similar. The enumerated traits include attributes like intelligence, legal knowledge, judgment, decisiveness, and so on.

Educating Judges—Where To From Here?, Livingston Armytage

Journal of Dispute Resolution

In this article, I present a critique of the emerging global practice of judicial education, which has been established and grown substantially over the past thirty years. There are four challenges relating to vision, pedagogy, knowledge and leadership that confront the continuing development of judicial education.

Judicial Education: Pedagogy For A Change, T. Brettel Dawson

Journal of Dispute Resolution

Canadian judges have maintained a steadfast, long-term commitment to judicial education. Through teaching one another, judges renew their vision over time, and more concretely, address their concerns and challenges today. Since its inception in 1985, the National Judicial Institute (NJI) has sought to be a partner and a resource to judges and Courts in a shared endeavour to create relevant, practical, and effective judicial education. Working together, the NJI, judges, and Courts have built a “Canadian model” of judicial education widely respected and emulated.

Judging As Judgment: Tying Judicial Education To Adjudication Theory, Robert G. Bone

Journal of Dispute Resolution

The thesis of this Article, simply stated, is that judicial education makes sense only against the backdrop of general ideas and beliefs about law, courts, and adjudication. These ideas and beliefs motivate a focus on educating judges and help guide more specific pedagogical choices. I explore this broad thesis from both a historical and a normative perspective. Historically, I argue that interest in judicial education caught fire in the 1960s in large part because of prevailing beliefs about law and the proper function of courts. Normatively, I argue that the connection between judicial education and normative views of courts and …