Law Commons^™

Anastasoff, Unpublished Opinions, And Federal Appellate Justice, Carl W. Tobias

Law Faculty Publications

In Anastasoff v. United States, a three-judge panel of the United States Court of Appeals for the Eighth Circuit recently invalidated the court's local rule of appellate procedure providing that "unpublished opinions are not precedent and parties generally should not cite them." Eighth Circuit Judge Richard S. Arnold authored the opinion, holding that this local requirement violates Article ill of the United States Constitution. Regardless of whether the provocative decision in Anastasoff is constitutionally sound, the opinion trenchantly emphasizes the critical significance of a public policy issue that has remained essentially untreated for too long.

The three-judge panel, thus, threw …

Dear Chief Judge Schroeder, Carl W. Tobias

Law Faculty Publications

Dear Judge Schroeder: Congratulations on becoming the Chief Judge of the United States Court of Appeals for the Ninth Circuit. Judge Procter Hug, Jr., transferred that office to you on December 1, 2000, during a quiet period in the tribunal's life, affording several months of relative calm m which to assume the daunting responsibility for Ninth Circuit operations. Your twenty-one-year service as an active court member will promote the felicitous discharge of your new duties as chief judge and will ease resolution of the difficulties that the tribunal will invariably encounter.

You have entered the pantheon of leaders whose century …

A Note On The Neutral Assignment Of Federal Appellate Judges, Carl W. Tobias

Law Faculty Publications

Response to J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 Tex. L. Rev. 1037 (2000).

Dear President Bush, Carl W. Tobias

Law Faculty Publications

Professor Tobias offers advice on judicial selection philosophy for the newly-elected President George W. Bush.

Military Commissions And Courts-Martial: A Brief Discussion Of The Constitutional And Jurisdictional Distinctions Between The Two Courts, Timothy C. Macdonnell

Scholarly Articles

On 13 November 2001, President George W. Bush signed Military Order 222, authorizing the trial of non-U.S. citizens for war crimes by military commission.' Since the signing of that order, a contentious debate has raged over the possible use of military commissions to try suspected terrorists. As part of that debate, the media has used various terms to describe the proposed military commissions. They have called them "Secret Military Trials,"' "Military Tribunals,"' and "U.S. Military Court[s]." A Cable News Network internet story described military commissions as "essentially a courts-martial, or a military trial, during a time of war." This quotation …

'Can We Go Home Now?' Expediting Adoption And Termination Of Parental Rights Appeals In Ohio State Courts, Susan Wawrose

School of Law Faculty Publications

Two years ago, the Ohio Supreme Court amended its rules and those of Ohio's intermediate appellate courts in order to fast-track appeals of cases involving termination of parental rights ("TPR") and adoption of minor children. Three of Ohio's twelve appellate districts already had local rules to expedite or accelerate these types of appeals, but in some districts, the amended rules established procedures that were entirely new.

The major impetus behind the court's amendments to the rules was to move children out of foster care and into permanent adoptive homes more quickly. Further, by amending the rules of the intermediate appellate …

Reconsidering Estoppel: Patent Administration And The Failure Of Festo, R. Polk Wagner

All Faculty Scholarship

Last Term, in Festo Corporation v. Shoketsu Kinzoku Kogyo Kabashuki Co., the United States Supreme Court missed perhaps the most important opportunity for patent law reform in two decades. At the core of the failure to grasp the implications of "prosecution history estoppel" - a judicially-crafted principle limiting the enforceable scope of patents based on acts occurring during their application process - is the heretofore universal (but ultimately unsupportable) view of the doctrine as an arbitrary ex post limitation on patent scope. This Article demonstrates the serious flaws in this traditionalist approach, and develops a new theory of prosecution history …

Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai

Faculty Scholarship

In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …

Clarence Thomas The First Ten Years: Looking For Consistency, Mark Niles

Faculty Articles

Dean Niles describes his observation and impression of the first ten years of Clarence Thomas’ judgeship. While Dean Niles admits that his own views are more liberal than Clarence Thomas’, he was not initially concerned about those differences. But as the days, weeks and years passed, notwithstanding Dean Niles’ early stoicism, serious concerns about the candidate, and later the Justice, began to arise. These concerns were not based on Justice Thomas' beliefs or ideology, but on a growing set of inconsistencies that began to arise between some of his beliefs and actions. With all due respect to a man who …

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention Court …

“Owing To The Extreme Youth Of The Accused”: The Changing Legal Response To Juvenile Homicide, David S. Tanenhaus, Steven A. Drizin

Scholarly Works

In this essay, the authors seek to dispel the myth that the juvenile court was never intended to deal with serious and violent offenders; a myth that has largely been unchallenged, especially in the mainstream media, and one that critics of the juvenile court have used to undermine its legitimacy. The discovery of homicide data from the Chicago police department from the early twentieth century, the era in which modern juvenile justice came of age, provides us with new historical date with which to put this dangerous myth to rest, by showing that the nation’s model juvenile court—the Cook County …

Agency Rules With The Force Of Law: The Original Convention, Thomas W. Merrill, Kathryn Tongue Watts

Faculty Scholarship

The Supreme Court recently held in United States v. Mead Corp. that agency interpretations should receive Chevron deference only when Congress has delegated power to the agency to make rules with the force of law and the agency has rendered its interpretation in the exercise of that power The first step of this inquiry is difficult to apply to interpretations adopted through rulemaking, because often rulemaking grants authorize the agency to make "such rules and regulations as are necessary to carry out the provisions of this chapter" or words to that effect, without specifying whether "rules and regulations" encompasses rules …

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …

Let The Jury Decide: The Gap Between What Judges And Reasonable People Believe Is Sexually Harassing, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.

Do Jury Trials Encourage Harsh Punishment In The United States?, William T. Pizzi

Publications

No abstract provided.

U.S. Announces Intent Not To Ratify International Criminal Court Treaty, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

The Practice Of Precedent: Anastasoff, Noncitation Rules, And The Meaning Of Precedent In An Interpretive Community, Lauren K. Robel

Articles by Maurer Faculty

No abstract provided.

Doing Our Politics In Court: Gerrymandering, "Fair Representation" And An Exegesis Into The Judicial Role, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Federal Judicial Selection In The Fourth Circuit, Carl W. Tobias

Law Faculty Publications

Professor Tobias assesses federal judicial selection for the United States Court of Appeals for the Fourth Circuit and for North Carolina. His Essay ascertains that four of fifteen active judgeships that Congress has authorized for the court have remained vacant over a considerable period and that a seat designated for North Carolina has been unfilled for seven years. He finds that these judicial vacancies may affect the appellate justice which the Fourth Circuit delivers and that North Carolina deserves.

The Expiration Of The Civil Justice Reform Act Of 1990, Carl W. Tobias

Law Faculty Publications

Ever since the United States Congress passed the Civil Justice Reform Act of 1990 (CJRA), a minor mystery of federal court jurisprudence has been whether - and if so, precisely when - that significant and controversial legislation expired. The measure instituted unprecedented nationwide experimentation with procedures that lawmakers intended to decrease cost and delay in civil litigation, but the statute's implementation additionally balkanized federal practice and procedure.

A Refreshing Jury Cola: Fulfilling The Duty To Compensate Jurors Adequately, Evan R. Seamone

Journal Articles

This Article adopts a new perspective on the obligation of states to compensate jurors on the basis of their financial needs. It combs the nation’s history for answers to a variety of significant questions: Why do states compensate jurors? Have there ever been minimal levels of juror compensation among the states of the union? Have any legal challenges resulted in governments raising jury fees? Have states developed uniform standards for juror compensation in light of varied economic conditions? While, at times, the responses to these questions will be brief, answering them is crucial to understanding how jury fees can be …

Comparative Forum Non Conveniens And The Hague Judgments Convention, Ronald A. Brand

Articles

This article begins with a discussion of the application of the forum non conveniens doctrine in four common law legal systems. It then briefly notes related concepts applied in the courts of two civil law systems. This discussion is followed in Part IV by a brief history of the negotiations at the Hague Conference on Private International Law for a Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters and a review of Articles 21 and 22 of the Interim Text of that Convention created at the June 2001 portion of the Diplomatic Conference. This review allows conclusions …

The Mote In Thy Brother’S Eye: A Review Of Human Rights As Politics And Idolatry, William M. Carter Jr.

Articles

Michael Ignatieffs provocatively titled collection of essays, Human Rights As Politics and Idolatry [hereinafter Human Rights], is a careful examination of the theoretical underpinnings and contradictions in the area of human rights. At bottom, both of his primary essays, Human Rights As Politics and Human Rights As Idolatry, make a claim that is perhaps contrary to the instincts of human rights thinkers and activists: namely, that international human rights can best be philosophically justified and effectively applied to the extent that they strive for minimal ism. Human rights activists generally argue for the opposite conclusion: that international human rights be …

A Common Private Law For Europe, Alan Watson

Scholarly Works

A satisfactory private law for Europe is not primarily to be sought for in the most common solutions, themselves the result of borrowing. Nor in established rules, themselves the result of longevity, and lack of governmental incentive in innovating. Nor should it be sought in intermediate positions of various mixed systems, themselves the results of the features just above described. Rather it is to be found in the need for authority. This means that a common law for Europe requires the acceptance of a uniform system of adjudicating differences within a standard framework of the necessary sources of law. Authority …

The Paradox Of Delegation: Interpreting The Federal Rules Of Civil Procedure, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman

Articles

Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in …

Insubstantial Questions And Federal Jurisdiction, Jonathan L. Entin

Faculty Publications

This article seeks to clear up the confusion over "substantial federal questions." Part I provides an overview of the Supreme Court's jurisdiction, distinguishing between appeal and certiorari. Part II examines the precedential weight of the Court's summary dispositions, contrasting summary disposition of appeals with denials of certiorari. Part III explains why the suggestions that the lower courts lack jurisdiction over cases presenting issues in which the Supreme Court has dismissed appeals "for want of a substantial federal question" are mistaken.

Federal Class Action Reform In The United States: Past And Future And Where Next?, Edward H. Cooper

Articles

Predicting the likely future developments in class action practice in the federal courts of the United States must begin in the past.