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2001

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Full-Text Articles in Law

Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy Dec 2001

Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy

Law Faculty Scholarly Articles

Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia ...


Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman Dec 2001

Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman

Boston College Law School Faculty Papers

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article ...


Court Review: Volume 38, Issue 3 - Complete Issue Oct 2001

Court Review: Volume 38, Issue 3 - Complete Issue

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 38, Issue 3 - Cover Oct 2001

Court Review: Volume 38, Issue 3 - Cover

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 38, Issue 3 - Table Of Contents Oct 2001

Court Review: Volume 38, Issue 3 - Table Of Contents

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 38, Issue 3 - On Judicial Independence Under Pressure, Procter Hug Jr. Oct 2001

Court Review: Volume 38, Issue 3 - On Judicial Independence Under Pressure, Procter Hug Jr.

Court Review: The Journal of the American Judges Association

Although our legal system is the envy of much of the world, we hear much criticism in our own country of lawyers and judges. But we should take real pride in the contribution of judges and lawyers to the formation of our country. Of the 55 delegates to amend the Articles of Confederation, which we now call the Constitutional Convention, 60% were lawyers or judges. Throughout the succeeding years, lawyers and judges have guided the continuing development of our system of government. I stress continuing development because it is not something like climbing a hill when we can say, “Ahhah ...


Court Review: Volume 38, Issue 3 - On The Importance Of Suggestibility Research In Assessing The Credibility Of Children’S Testimony, David A. Martindale Oct 2001

Court Review: Volume 38, Issue 3 - On The Importance Of Suggestibility Research In Assessing The Credibility Of Children’S Testimony, David A. Martindale

Court Review: The Journal of the American Judges Association

In the spring of 1999, Professor Thomas Lyon of the University of Southern California Law School published a lengthy law review article in which he argued that the introduction into evidence of research on the suggestibility of child witnesses was not of assistance to triers of fact.1 Lyon’s article has found its way into judicial training packets and has been posted to electronic bulletin boards sponsored by organizations with interest in custody evaluations, psychology and law, and related topics. Because judges are soon likely to encounter arguments based upon Lyon’s article, I wish to alert judges to ...


Court Review: Volume 38, Issue 3 - Let’S Not Exaggerate The Suggestibility Of Children, Thomas D. Lyon Oct 2001

Court Review: Volume 38, Issue 3 - Let’S Not Exaggerate The Suggestibility Of Children, Thomas D. Lyon

Court Review: The Journal of the American Judges Association

I’m grateful to Dr. Martindale for introducing the reader to an important and lively debate among practitioners and academics over the relevance of recent research on children’s suggestibility. In my Cornell Law Review article, I argued that the recent research on suggestibility was inspired by highly coercive interviewing techniques in widely publicized cases that are not the norm in child sexual abuse investigations. These techniques include telling children that they have been abused, telling children that a particular person is the abuser, and asking children to imagine details regarding how abuse could have taken place. Moreover, I argued ...


Court Review: Volume 38, Issue 3 - Recent Civil Decisions Of The United States Supreme Court: The 2000-2001 Term, Charles H. Whitebread Oct 2001

Court Review: Volume 38, Issue 3 - Recent Civil Decisions Of The United States Supreme Court: The 2000-2001 Term, Charles H. Whitebread

Court Review: The Journal of the American Judges Association

The Supreme Court’s role in the 2000 presidential election sparked intense national debate and will be the sole decision for which this term will be remembered. Although no other decisions rose to same level of political or popular significance, the Court confronted various civil-law topics of particular interest. Among them were issues concerning immigrant rights, interpretation of significant statutes such as the Americans with Disabilities Act, and important matters regarding the First Amendment and federalism.


Court Review: Volume 38, Issue 3 - “You Don’T Have To Hear, Just Interpret!”: How Ethnocentrism In The California Courts Impedes Equal Access To The Courts For Spanish Speakers, Roxana Cardenas Oct 2001

Court Review: Volume 38, Issue 3 - “You Don’T Have To Hear, Just Interpret!”: How Ethnocentrism In The California Courts Impedes Equal Access To The Courts For Spanish Speakers, Roxana Cardenas

Court Review: The Journal of the American Judges Association

This article analyzes the legal field’s apparent lack of interest in interpreter-related problems as a major barrier to ensuring equal access to the courts for Spanish speakers. It also seeks to dispel certain myths or misinformation about the function of interpreters by delving into a particular infamous case that involved the misuse of interpreters: the O.J. Simpson case.


Court Review: Volume 38, Issue 3 - Editor's Note Oct 2001

Court Review: Volume 38, Issue 3 - Editor's Note

Court Review: The Journal of the American Judges Association

Our issue begins with Judge Procter Hug, Jr.’s thoughts on judicial independence under pressure. We reprint the remarks he gave as the featured speaker at the American Judges Association’s annual educational conference in October 2001. Judge Hug’s comments, as well as those of AJA president Bonnie Sudderth in her president’s column, deal with issues faced by judges in times of crisis, including in the aftermath of the September 11, 2001 terrorist attacks in the United States.


Court Review: Volume 38, Issue 3 - President's Column, Bonnie Sudderth Oct 2001

Court Review: Volume 38, Issue 3 - President's Column, Bonnie Sudderth

Court Review: The Journal of the American Judges Association

Benjamin Franklin, one of America’s founding fathers, was said to have remarked that anyone who would sacrifice liberty for the sake of safety deserved neither. Yet that is exactly the balancing act that the United States, and indeed other free nations, face as we endure the aftermath of September 11. Will September 11 be remembered as the day that our liberties were tested and lost? Or will it be the day that we began a serious debate over how much, if any, liberty we as a nation can sacrifice for the sake of safety and still be a nation ...


Court Review: Volume 38, Issue 3 - Resource Page Oct 2001

Court Review: Volume 38, Issue 3 - Resource Page

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 38, Issue 2 - No Longer Speaking In Code, Rodney Davis Oct 2001

Court Review: Volume 38, Issue 2 - No Longer Speaking In Code, Rodney Davis

Court Review: The Journal of the American Judges Association

In October 2000, 90 of the 100 appellate and supreme court justices of California were attending their annual appellate institute when Bryan Garner lectured on judicial writing and proposed dropping citations into footnotes. Garner was persuasive and when he announced his “altar call” through a show of hands of judges that were willing to change, I, along with a clear majority of those present, indicated that we were. Yet, a year after that institute only five of us have adopted Garner’s suggestion. I believe I know why.


Court Review: Volume 38, Issue 2 - Afterword, Bryan A. Garner Oct 2001

Court Review: Volume 38, Issue 2 - Afterword, Bryan A. Garner

Court Review: The Journal of the American Judges Association

That said, Judge Posner’s response here is off the mark (he doesn’t distinguish citational from substantive footnotes, and therefore doesn’t address my main thesis), based on an irrelevant standard (our opinions are short enough as it is), self-contradictory (a judge can always use footnotes to shorten the text), and downright quirky (opinions shouldn’t have a “spurious air of scholarship”). Although opinions may not be scholarship, their very essence is reasoning, and the citations that judges now throw on the page can obscure the reasoning for both the reader and the writer.


Court Review: Volume 38, Issue 2 - The Resource Page: Focus On Legal Writing Oct 2001

Court Review: Volume 38, Issue 2 - The Resource Page: Focus On Legal Writing

Court Review: The Journal of the American Judges Association

No abstract provided.


Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters Oct 2001

Persuasion: A Model Of Majoritarianism As Adjudication, Christopher J. Peters

All Faculty Scholarship

This article, which has been published in slightly revised form at 96 Nw. U.L. Rev. 1 (2001), is an application and extension of my theory of adjudication as representation, which holds that the procedural elements of litigant participation and interest representation confer democratic legitimacy on court decisions. In the article, I first develop the notion of a "majoritarian difficulty": the often-ignored tension between democratic self-rule and majority domination of the political minority. Second, I offer a model of majoritarianism as a type of adjudication, in which interested parties lobby for favorable decisions by a neutral decisionmaker. Third, I contend ...


"True Human Community": Catholic Social Thought, Aristotelian Ethics, And The Moral Order Of The Business Company, Scott T. Fitzgibbon Oct 2001

"True Human Community": Catholic Social Thought, Aristotelian Ethics, And The Moral Order Of The Business Company, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

No abstract provided.


Reframing Impunity: Applying Liberal International Law Theory To An Analysis Of Amnesty Legislation, William W. Burke-White Jul 2001

Reframing Impunity: Applying Liberal International Law Theory To An Analysis Of Amnesty Legislation, William W. Burke-White

Faculty Scholarship at Penn Law

No abstract provided.


Court Review: Volume 38, Issue 3 - Complete Issue Jul 2001

Court Review: Volume 38, Issue 3 - Complete Issue

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 38, Issue 2 - Cover Jul 2001

Court Review: Volume 38, Issue 2 - Cover

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 38, Issue 2 - Table Of Contents Jul 2001

Court Review: Volume 38, Issue 2 - Table Of Contents

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 38, Issue 2 - Clearing The Cobwebs From Judicial Opinions, Bryan A. Garner Jul 2001

Court Review: Volume 38, Issue 2 - Clearing The Cobwebs From Judicial Opinions, Bryan A. Garner

Court Review: The Journal of the American Judges Association

Ipropose that judges, in their opinions, put citations in footnotes and generally abstain from using substantive footnotes. And I propose that courts adopt a rule that brief writers may single-space footnotes if they contain only citations (or parentheticals coupled with citations) but must double space all footnotes that contain sentences. These simple proposals, if widely adopted, would promote better writing within the legal profession by encouraging legal writers to:
• Use shorter sentences.
• Compose paragraphs that are more coherent and forceful.
• Lead their readers to focus on ideas, not numbers.
• Lay bare poor writing and poor thinking.
• Discuss the controlling caselaw ...


Court Review: Volume 38, Issue 2 - Against Footnotes, Richard A. Posner Jul 2001

Court Review: Volume 38, Issue 2 - Against Footnotes, Richard A. Posner

Court Review: The Journal of the American Judges Association

The obvious objection to footnotes is that they force the reader to interrupt the reading of the text with glances down to the bottom of the page. They prevent continuous reading. In doing so they make the reader work harder for the same information. In articles, which are (in law anyway) usually much longer than judicial opinions, and a fortiori in books, bringing citations into the text would elongate the text unduly. But opinions, as I say, usually are short; the two opinions of mine that Garner quotes from in his article are only 1,300 and 2,700 words ...


Court Review: Volume 38, Issue 2 - First Things First: The Lost Art Of Summarizing, Joseph Kimble Jul 2001

Court Review: Volume 38, Issue 2 - First Things First: The Lost Art Of Summarizing, Joseph Kimble

Court Review: The Journal of the American Judges Association

If you value clarity, if you insist on lighting the way for your reader, then you’ll provide good summaries where they belong in just about every piece of legal writing: up front. You should always have one at the beginning or near the beginning, and if you’re dealing with multiple issues, you should have one at the beginning of each issue. Call them what you will—summaries, overviews, brief answers, thesis statements, synopses—they are central to clear writing:

A vast amount of empirical research has studied the effects of overviews on learning from written prose. The research ...


Court Review: Volume 38, Issue 2 - Extrajudicial Speech: Navigating Perils And Avoiding Pitfalls, William G. Ross Jul 2001

Court Review: Volume 38, Issue 2 - Extrajudicial Speech: Navigating Perils And Avoiding Pitfalls, William G. Ross

Court Review: The Journal of the American Judges Association

In its biting opinion, the U.S. Court of Appeals for the District of Columbia castigated Judge Jackson for giving media interviews and public speeches in which he made remarkably astringent remarks about Microsoft. Among his more colorful comments, the judge mused that Bill Gates had Napoleonic hubris and he likened the break-up of Microsoft to swatting a recalcitrant mule with a two-by-four. Among his more potentially prejudicial remarks were his speculation to reporters— before his order splitting Microsoft—that ‘a break-up is inevitable” and his post-trial comments disparaging the credibility of trial witnesses.


Court Review: Volume 38, Issue 2 - Recent Criminal Decisions Of The United States Supreme Court: The 2000-2001 Term, Charles H. Whitebread Jul 2001

Court Review: Volume 38, Issue 2 - Recent Criminal Decisions Of The United States Supreme Court: The 2000-2001 Term, Charles H. Whitebread

Court Review: The Journal of the American Judges Association

The United States Supreme Court’s 2000-2001 term will always be remembered for the Court’s role in deciding the outcome of the contemporaneous presidential election. Despite the notoriety of that decision, the rest of the term was relatively uneventful. Marked by recurrent split decisions, the Court addressed significant issues regarding an individual’s Fourth Amendment rights in the face of technological advance and law enforcement authority, the death penalty, and other topics of criminal procedure.


Court Review: Volume 38, Issue 2 - Editor's Note Jul 2001

Court Review: Volume 38, Issue 2 - Editor's Note

Court Review: The Journal of the American Judges Association

In early July, when I opened the Sunday New York Times, I was surprised to see a front- page article devoted to whether legal citations in court opinions should appear in text or be placed in footnotes. Before the end of the day— thanks to the modern miracle of e-mail and people so driven that they are online on Sundays—both Bryan Garner and Judge Richard Posner, each among the best writers the legal world has known, had agreed to write articles on this topic for Court Review. The next day, Justice Rodney Davis joined the group and the debate ...


Court Review: Volume 38, Issue 2 - The President's Column, Bonnie Sudderth Jul 2001

Court Review: Volume 38, Issue 2 - The President's Column, Bonnie Sudderth

Court Review: The Journal of the American Judges Association

Every day, all across the United States, Canada, and Mexico, judges go about the business of dispensing justice. But absolute justice, like any other ideal, can never be fully realized, because its achievement would require human infallability. Nevertheless, while it may never be fully realized on this earth, the quest for justice is an endeavor of the noblest order. For judges in courts of law and equity, it is the ultimate endeavor of our profession. It is upon that endeavor that our system of justice is premised, and without which our system of justice would fail.


Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala Jun 2001

Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.