Law Commons^™

Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.

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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 …

Politicizing The Crime Against Humanity: The French Example, Vivian Grosswald Curran

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The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the …

Child Placement Decisions: The Relevance Of Facial Resemblance And Biological Relationships, David J. Herring

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This article discusses two studies of evolution and human behavior addressing child-adult relationships and explores implications for policies and practices surrounding placement of children in foster homes. The first study indicates that men favor children whose facial features resemble their own facial features. This study may justify public child welfare decisionmakers in considering facial resemblance as they attempt to place children in safe foster homes.

The second study indicates that parents are likely to invest more in children who are biologically related to them, thus enhancing their long term well-being. Among other implications, this study may justify public child welfare …

Habermas@Discourse.Net: Toward A Critical Theory Of Cyberspace, A. Michael Froomkin

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No abstract provided.

How To Be A Moorean, Donald H. Regan

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G. E. Moore’s position in the moral philosophy canon is paradoxical. On the one hand, he is widely regarded as the most influential moral philosopher of the twentieth century. On the other hand, his most characteristic doctrines are now more often ridiculed than defended or even discussed seriously. I shall discuss briefly a number of Moorean topics—the nonnaturalness of “good,” the open question argument, the relation of the right and the good, whether fundamental value is intrinsic, and the role of beauty—hoping to explain how a philosophically informed person could actually be a Moorean even today.1

Judicial Activism: The Good, The Bad, And The Ugly, Arthur D. Hellman

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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 …

Can A Theory Of Interpretation Make A Difference?, George H. Taylor

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Can a theory of interpretation make a difference? The question has been posed most prominently by Judge Richard Posner, who, in recent work, has criticized the ability to make a difference of both theory writ large and of a theory of interpretation in particular. In other work I contend, contrary to Posner, that a theory of interpretation can make a difference at the level of methodology. Using the example of constitutional and statutory interpretation in law, I develop a theory that argues for the propriety and value of certain methods of interpretation over others. In the present essay, my concern …

Community Competence For Matters Of Judicial Cooperation At The Hague Conference On Private International Law: A View From The United States, Ronald A. Brand

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The Amsterdam Treaty's introduction of Article 65 into the European Community Treaty took little time to achieve practical importance. In fact, the questions were practical as early as they were theoretical. A 1992 request by the United States that the Hague Conference on Private International Law negotiate a global convention on jurisdiction and the recognition of civil judgments resulted in a laboratory for the new-found competence of the Community. Thus, negotiations already underway--which included delegations from all 15 EU Member States--were affected significantly by the transfer of competence from those states to the Community institutions for matters under consideration at …

Textual Imagination, Mary D. Fan

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Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. The Supreme Court’s decision in Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources shows the Supreme Court’s mounting disregard for legislative history and concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff’s fees to “prevailing parties” under statutes authorizing private attorneys general to bring …

Probability And Statistics In The Legal Curriculum: A Case Study In Disciplinary Aspects Of Interdisciplinarity, Michael Townsend

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This Article considers interdisciplinarity and the legal curriculum in the context of probability and statistics. Section D of Part II begins the discussion by sketching some multidisciplinary, pluridisciplinary, interdisciplinary, and transdisciplinary approaches. Part III is the workhorse of this Article. The particular example used here is the well-known jury discrimination case of Castaneda v. Partida as described in Section A. This "case study" provides the basis for a crossdisciplinary experience that offers students an opportunity to think about law as a discipline. It is difficult for students to step back and look at law as a discipline when there is …

The Value Of Rational Nature, Donald H. Regan

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Kant tells us in the Groundwork of the Metaphysics of Morals that rational nature is an end in itself; that it is the only thing which is unconditionally valuable; and that it is the ultimate condition of all value.1 A striking trend in recent Kant scholarship is to regard these value claims, rather than the formalism of universalizability, as the ultimate foundation of Kant’s theory.2 But does rational nature as Kant conceives it deserve such veneration? Can it really carry the world of value on its shoulders? I think not. As will become clear, I do not doubt the value …

Which Means To An End Under The Uniform Mediation Act, Andrea Kupfer Schneider

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No abstract provided.

A Measure Of Freedom, James W. Nickel

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No abstract provided.

Latcrit At Five: Institutionalizing A Postsubordination Future, Elizabeth M. Iglesias, Francisco Valdes

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No abstract provided.

Intellectual Property, Electronic Commerce And The Preliminary Draft Hague Jurisdiction And Judgments Convention, Ronald A. Brand

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On October 30, 1999, a Special Commission of the Hague Conference on Private International Law adopted a Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters ("Preliminary Draft Convention," or "PDC") which was further developed in June of 2001.Originally scheduled for a final diplomatic conference in the fall of 2000, the negotiating process was delayed as a result of serious questions raised about the draft language.

After a discussion of the history of the convention, this paper presents a review of the Preliminary Draft Convention text, describing its structure and scope. It then provides a focus …

Competing Frameworks For Assessing Contemporary Holocaust-Era Claims, Vivian Grosswald Curran

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There are many angles from which to perceive the contemporary holocaust-era claims. In 1997, Time magazine quoted Elie Wiesel as saying that, [i]f all the money in all the Swiss banks were turned over, it would not bring back the life of one Jewish child. But the money is a symbol. It is part of the story. If you suppress any part of the story, it comes back later, with force and violence.

Wiesel touches on two perspectives: first, what has been described as litigating the holocaust, with all that that implies about the law's questionable capacity to adjudicate issues …

Interpretive Communities: The Missing Element In Statutory Interpretation, William S. Blatt

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No abstract provided.

Afterword And Response: What Digging Does And Does Not Do, Patricia D. White

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No abstract provided.

Travelers, Reasoned Textualism, And The New Jurisprudence Of Erisa Preemption, Edward A. Zelinsky

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Upon the enactment of the Employee Retirement Income Security Act of 1974 ("ERISA"), few would have predicted that, a generation later, ERISA's provisions preempting state law would be front page news, a central topic of national debate about health care and its regulation. Similarly, few foresaw at the time ERISA was adopted that the United States Supreme Court would have great difficulty construing ERISA's preemption provisions. By the same token, in 1974 the contemporary revival of interest in statutory textualism lay well into the future.

Managed Care, Autonomy, And Decision-Making At The End-Of-Life, Alan Meisel

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Some argue that legalizing physician-assisted suicide poses intolerable risks, especially as we move from a system of fee-for-service health care to managed care. Although we need to be concerned about physician-assisted suicide in the context of managed care, physician-assisted suicide poses risks in a fee-for-service system too. In addition, we need to be concerned about the risks posed not only by physician-assisted suicide but also by the well-accepted practice of forgoing life-sustaining treatment. Instead of focusing on the manner of hastening death or the type of health care system, we need to show more concern for protections to assure that …

The Cutting Edge Of Poster Law, Michael A. Heller

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Students place tens of thousands of posters around law schools each year in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go-and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

Light On A Darkling Plain: Intercircuit Conflicts In The Perspective Of Time And Experience, Arthur D. Hellman

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The time has long passed when the Supreme Court resolved every intercircuit conflict properly brought before it in a petition for certiorari. Is that a problem we should be concerned about? Three decades ago, Congress asked the Federal Judicial Center, the research arm of the federal judiciary, to conduct a study to ascertain “the number and frequency of conflicts among the judicial circuits … that remain unresolved because they are not heard by the Supreme Court.” Congress further requested that the Center determine the extent to which the unresolved conflicts are “intolerable.” The Center asked me to design and conduct …

Logic And Elements. (Premises And Conclusions: Symbolic Logic For Legal Analysis)." , Richard D. Friedman

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We may happily agree with Holmes that logic is not the life of the law' and yet contend that logic should play a significant role in legal discourse. Logic cannot demonstrate the truth of premises, and so by itself it cannot demonstrate the merits of a legal argument. Moreover, even given the premises, it may be that a leap of faith, or intuition, has an irreducible role at least in some good legal arguments.2 But at least a sound legal argument will not be an illogical one. An argument will not be persuasive if it appears to violate basic principles …

Up From Individualism (The Brennan Center Symposium On Constitutional Law)." , Donald J. Herzog

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I was sitting, ruefully contemplating the dilemmas of being a commentator, wondering whether I had the effrontery to rise and offer a dreadful confession: the first time I encountered the countermajoritarian difficulty, I didn't bite. I didn't say, "Wow, that's a giant problem." I didn't immediately start casting about for ingenious ways to solve or dissolve it. I just shrugged. Now I don't think that's because my commitments to either democracy or constitutionalism are somehow faulty or suspect. Nor do I think it's that they obviously cohere. It's rather that the framing, "look, these nine unelected characters can strike down …

The Hazards Of Tinkering With The Common Law Of Future Interests: The California Experience, Laura E. Cunningham

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No abstract provided.

What Price Peace: From Nuremberg To Bosnia To The Nobel Peace Prize, Malvina Halberstam

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No abstract provided.

Towards A (Bayesian) Convergence?, Richard D. Friedman

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If I understand them correctly, several leading Bayesioskeptics (Allen, Callen, Stein) acknowledge - with varying degrees of specificity and varying degrees of grudgingness - that standard probability theory can be useful as an analytical tool in considering evidentiary doctrines and the probative value of evidentiary items.

Who’S Afraid Of Humpty Dumpty: Deconstructionist References In Judicial Opinions, Madeleine M. Plasencia

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This Article examines the treatment of deconstruction in United States judicial opinions.' A handful of cases have directly referred to the French philosopher and literary theorist, Jacques Derrida.2 In each of these cases, the court has rejected Derrida's philosophy, apparently out of a fear that recognition of any legitimacy of Derrida's thoughts would lead to the self-destruction of the legal world. These courts have misunderstood that consideration or recognition of Derrida's philosophy in the legal context would not unavoidably lead to the end of all meaningful legal discourse in the United States. A discussion of these cases will serve as …

The Jurisprudence Of Yogi Berra, Edward H. Cooper, Grace C. Tonner

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Lawrence Peter "Yogi" Berra was born on May 12, 1925, in St. Louis, Missouri, and grew up to become one of baseball's all-time greats. Yogi played nineteen years in the Major Leagues, eighteen with the New York Yankees and one with the New York Mets He has been called the greatest Yankee catcher ever. During his career, Yogi played in a record fourteen World Series and was elected the American League's Most Valuable Player three times. Following his playing career, Yogi managed both the Yankees and the New York Mets, and coached the Yankees, Mets, and Houston Astros. He received …

Introduction To Panel Five: The Inter-Subjectivity Of Objective Justice: A Theory And Praxis For Constructing Latcrit Coalitions, Elizabeth M. Iglesias

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No abstract provided.