Law Commons^™

Different Roads To The Rule Of Law: Their Importance For Law Reform In Taiwan, James Maxeiner

All Faculty Scholarship

Talk of law reform is in the air throughout East Asia. Whether in Beijing or Tokyo or here, law reform is spoken of in terms of strengthening the Rule of Law. But what is the Rule of Law? Different legal systems have different roads to reach the Rule of Law. These different roads are noticeable mainly in the different emphases different systems place on two critical elements in the realization of the Rule of Law State, namely rules and the machinery for implementing the rules, i.e., courts and administrative agencies. The Rule of Law makes demands on both the ...

Too Close To The Rack And The Screw: Constitutional Constraints On Torture In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.

For And Against Marriage: A Revision., Anita Bernstein

Faculty Scholarship

No abstract provided.

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial ...

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle ...

Court Review: Volume 40, Issue 2 - Judicial Report On The Adjudication And Sanctioning Of Hard-Core Drinking Drivers, Robyn Robertson, Herb Simpson

Court Review: The Journal of the American Judges Association

Impaired driving is the most frequently committed crime in America. It has been an issue of debate and concern for the judiciary, as courtrooms across the country hear cases involving a majority of the 1.4 million annual DWI arrests. Since the early 1980s, concerned citizens have lobbied for and won considerable changes to the way these cases are approached from a public-policy perspective, often resulting in legislative initiatives and changes in criminal practice. Until now, however, little comprehensive research has been conducted on the implications of these system-wide changes for criminal justice professionals.

In December 2002, the Traffic Injury ...

Court Review: Volume 40, Issue 2 - Recent Criminal Decisions Of The United States Supreme Court: The 2002-2003 Term, Charles H. Whitebread

Court Review: The Journal of the American Judges Association

In criminal cases, this term of the United States Supreme Court had several important decisions, but no landmark cases. The Court continued to favor law enforcement. One significant development was the substantial impact of section 2254(d) of the Anti-terrorism and Effective Death Penalty Act is having in closing the door of federal courts to state prisoners petitioning for the writ of habeas corpus. Here are several of the important criminal decisions decided this term.

Court Review: Volume 40, Issue 2 - Editor's Note

Court Review: The Journal of the American Judges Association

We begin this issue by reprinting Burke’s remarks at the Rehnquist Award ceremony. Burke tries to identify the key ingredients needed to let a court fulfill its promise to the public. His list includes fairness and respect, listening and understanding, and accountability. We think you’ll find his comments of interest. We invite your response, either via a letter to the editor or a responsive essay.

Court Review: Volume 40, Issue 2 - The Resource Page

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 40, Issue 2 - President’S Column, Michael R. Mcadam

Court Review: The Journal of the American Judges Association

As I wrote this, the National Center for State Courts had just completed the Eighth Court Technology Conference (CTC8) in Kansas City, Missouri. I was fortunate to be able to participate in CTC8 as your president and as a local host. My thoughts about CTC8 follow several lines of analysis, one about the role of technology in our courts, another about the impact of the National Center, and a third about the international nature of technology.

Court Review: Volume 40, Issue 2 - Complete Issue

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 40, Issue 2 - Cover

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review; Volume 40, Issue 2 - Table Of Contents

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 40, Issue 2 - A Court And A Judiciary That Is As Good As Its Promise, Kevin S. Burke

Court Review: The Journal of the American Judges Association

Today the dissatisfaction with the administration of justice is at a level that none of us should tolerate or accept, for it threatens our democracy as much or more than any terrorist. The nation’s dissatisfaction with the administration of justice is our issue of homeland security. In Pound’s speech, he spoke first of the popular assumption that the administration of justice is an easy task to which anyone is competent. The fact that I am the recipient of the Rehnquist Award proves to many that Pound was correct.

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment ...

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Court Review: Volume 40, Issue 1 - Complete Issue

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 40, Issue 1 - Cover

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 40, Issue 1 - A Survey Of Judges’ Knowledge And Beliefs About Eyewitness Testimony, Richard A. Wise, Martin A. Safer

Court Review: The Journal of the American Judges Association

Forensic DNA testing suggests that potentially large numbers of innocent persons are being convicted of crimes. Case studies conducted both prior to and following the advent of DNA testing indicate that eyewitness error is at least partially responsible for the majority of wrongful convictions. Empirical research has shown which factors contribute to eyewitness error and has identified procedural changes that could be made in the criminal justice system to significantly reduce the number of erroneous eyewitness identifications.

We report the results of a brief survey of what U.S. judges know and believe about eyewitness testimony. The present survey highlights ...

Court Review: Volume 40, Issue 1 - Editor's Note

Court Review: The Journal of the American Judges Association

The lead article in this issue gives you a chance to test your beliefs about what leads to accurate—or to mistaken—eyewitness testimony. For 14 separate propositions on which research has given relatively clear answers, researchers Richard Wise and Martin Safer summarize the conclusions of researchers in the field. They also report the results of a survey of judges that tested judicial knowledge in these 14 areas, plus a few others. Thus, a review of this article will let you compare your knowledge both to other judges and to the best research available today.

Court Review: Volume 40, Issue 1 - Table Of Contents

Court Review: The Journal of the American Judges Association

No abstract provided.

Court Review: Volume 40, Issue 1 - Children As Witnesses: What We Hear Them Say May Not Be What They Mean, David B. Battin, Stephan J. Ceci

Court Review: The Journal of the American Judges Association

Children present a special challenge when they become participants in the legal system. Jean Piaget said that the work of a child is to play. That is the basis for most interactions between children and adults. The child plays and the consequences of that play are unimportant to adult affairs—that is, unless the child is under the age of 6 or 7 and is required to serve as a witness. In that situation the consequences of what the child says or chooses not to say can be truly significant. The special challenge for adults hearing the child’s testimony ...

Court Review: Volume 40, Issue 1 - Recent Civil Decisions Of The United States Supreme Court: The 2002-2003 Term, Charles H. Whitebread

Court Review: The Journal of the American Judges Association

The past term of the United States Supreme Court was dramatic, unexpected, and produced constitutional decisions that affect the nature and fabric of our society. The term had three or four “star” cases: the approval of affirmative action, the striking down of bans on gay sexual relations, the U-turn in the Court’s federalism revolution, and the restriction on punitive damage awards. These decisions and the other rulings in constitutional law outside the criminal field made up the bulk of the Court’s opinions for the 2002-2003 term.

Court Review: Volume 40, Issue 1 - President's Column, Michael R. Mcadam

Court Review: The Journal of the American Judges Association

I’m very honored and humbled to be your President. The American Judges Association is a special organization with special attributes that no other judicial organization possesses. We are uniquely an association of judges, run by judges, for judges. And, we are uniquely an independent association of all judges. Every other judicial organization that I’m aware of has either a limited membership criterion (trial judges, Missouri judges, juvenile judges, federal judges, appellate judges, presiding judges, etc.) or it has an open membership but is controlled by someone else and is divided into impervious sections. These are all important and ...

Court Review: Volume 40, Issue 1 - Resource Page

Court Review: The Journal of the American Judges Association

No abstract provided.

Memorandum Of Argument, Supreme Court Of Canada, In Re James R. Demers, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Justice Scalia's Tax Jurisprudence, Stephen T. Black, Katherine D. Black

Law Faculty Scholarship

Justice Scalia is an outspoken conservative acclaimed for his remarkable intellect and scholarship, and is noted for his adherence to the principle of judicial restraint. He pursues what he insists is an "originalist" path that relies on the Constitution's actual text in decision-making. He works hard to try to maintain constitutional interpretation that does not change from case to case.

So what happens when an "originalist"--concerned that Congress writes imprecise legislation and then leaves its interpretation and application in the hands of administrative agencies or, worse yet, the courts-is forced to deal with tax issues? This article takes ...

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First ...

A Matter Of Constitutional Luck: The General Applicability Requirement In Free Exercise Jurisprudence, Christopher C. Lund

Law Faculty Research Publications

No abstract provided.