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Articles 1 - 4 of 4
Full-Text Articles in Law
Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman
Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman
Articles
The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the …
Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand
Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand
Articles
This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …
Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.
Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.
Articles
The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested.
One such …
Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman
Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman
Articles
No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? Implicit in this question are several important issues about the role of courts in our democratic society.
I take my definition from Judge Richard Posner, who describes activist decisions as those that expand judicial power over other branches of the national government or over state governments. Unlike other uses …