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2006

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Articles 31 - 60 of 129

Full-Text Articles in Law

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer Apr 2006

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by ...


Gatekeeping After Gilbert: How Lawyers Should Address The Court's New Emphasis, Brian Benner, Ronald L. Carlson Mar 2006

Gatekeeping After Gilbert: How Lawyers Should Address The Court's New Emphasis, Brian Benner, Ronald L. Carlson

Popular Media

In the world of modern trials, expert witnesses are the coin of the realm. Lawyers know that most of the time, experts are case-breakers. Their demeanor, knowledge, and presentation ability are key qualities. Accordingly, their persuasive effect on modern lay jurors makes it incumbent on judges to ensure that an expert's opinions are appropriately directed. That means not allowing an economist to testify about the medical dynamics of bone disease, for example.


John Paul Stevens, Human Rights Judge, Diane Marie Amann Mar 2006

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese ...


Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding Feb 2006

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding

All Faculty Scholarship

No abstract provided.


Justice Stevens, The Peremptory Challenge, And The Jury (Symposium), Nancy S. Marder Feb 2006

Justice Stevens, The Peremptory Challenge, And The Jury (Symposium), Nancy S. Marder

All Faculty Scholarship

No abstract provided.


Bringing Jury Instructions Into The Twenty-First Century, Nancy S. Marder Feb 2006

Bringing Jury Instructions Into The Twenty-First Century, Nancy S. Marder

All Faculty Scholarship

No abstract provided.


Introduction To Secrecy In Litigation (Symposium Editor), Nancy S. Marder Feb 2006

Introduction To Secrecy In Litigation (Symposium Editor), Nancy S. Marder

All Faculty Scholarship

No abstract provided.


Cyberjuries: A New Role As Online Mock Juries, Nancy S. Marder Feb 2006

Cyberjuries: A New Role As Online Mock Juries, Nancy S. Marder

All Faculty Scholarship

No abstract provided.


Is There A Bias Against Education In The Jury Selection Process?, Hillel Y. Levin, John W. Emerson Feb 2006

Is There A Bias Against Education In The Jury Selection Process?, Hillel Y. Levin, John W. Emerson

Scholarly Works

Herbert Spencer famously said that a jury is “a group of twelve people of average ignorance.” That is not a particularly rosy picture of juror competence, but it presents a far better view than the one held by many -- if not most -- modern commentators. The more common contemporary sentiment was captured by Mark Twain when he wrote, in his inimitable style, “[w]e have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve [people] every day who don't know anything and can't read ...


Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum Jan 2006

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

Rutgers Law School (Newark) Faculty Papers

Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the ...


The U.S. And The International Criminal Court (Icc), Paul R. Rickert Jan 2006

The U.S. And The International Criminal Court (Icc), Paul R. Rickert

Faculty Publications and Presentations

This paper is a discussion of the notable issues the U.S. points out regarding the Rome Treaty, the treaty establishing the International Criminal Court.


Train Our Jurors, Jonathan Koehler Jan 2006

Train Our Jurors, Jonathan Koehler

Faculty Working Papers

Lay jurors are often legally and logically unprepared for trial. In response, it is recommended that jurors receive training in how to make better legal decisions. This chapter suggests that jurors should receive comprehensive training in critical legal doctrines and in how to reason with legal evidence. Jurors who cannot be trained to achieve minimal levels of competence (in the law or in basic reasoning) should be excused from jury service. Suggestions are given as to how policy makers and researchers who are interested in jury reform may wish to proceed.


Argument From Expert Opinion As Legal Evidence: Critical Questions And Admissibility Criteria Of Expert Testimony In The American Legal System, David M. Godden, Douglas Walton Jan 2006

Argument From Expert Opinion As Legal Evidence: Critical Questions And Admissibility Criteria Of Expert Testimony In The American Legal System, David M. Godden, Douglas Walton

CRRAR Publications

While courts depend on expert opinions in reaching sound judgments, the role of the expert witness in legal proceedings is associated with a litany of problems. Perhaps most prevalent is the question of under what circumstances should testimony be admitted as expert opinion. We review the changing policies adopted by American courts in an attempt to ensure the reliability and usefulness of the scientific and technical information admitted as evidence. We argue that these admissibility criteria are best seen in a dialectical context as a set of critical questions of the kind commonly used in models of argumentation.


Avoiding Absurdity, Glen Staszewski Jan 2006

Avoiding Absurdity, Glen Staszewski

Faculty Publications

No abstract provided.


Reports Of Cases In The Court Of Exchequer In The Time Of King Charles I (1625 To 1648), William Hamilton Bryson Jan 2006

Reports Of Cases In The Court Of Exchequer In The Time Of King Charles I (1625 To 1648), William Hamilton Bryson

Law Faculty Publications

This collection of previously unreported plea-side cases from the Court of Exchequer in the seventeenth century will be welcomed by legal historians. What we know about the growth of the common law in the early modern era has been largely derived from printed sources. The reality, however, is that a great many of the decisions of England's common law courts in the seventeenth and eighteenth centuries were never reported. No official court reporting existed until well into the nineteenth century. For the most part in earlier times, judicial decisions were brought into print only when enterprising individuals (often young ...


The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White Jan 2006

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

Articles

No abstract provided.


Introduction To Vanishing Trial Symposium, John M. Lande Jan 2006

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes ...


The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers Jan 2006

The Federal Constitutional Court: Guardian Of German Democracy, Donald P. Kommers

Journal Articles

Germany’s Federal Constitutional Court rivals the Supreme Court of the United States in protecting political democracy. Its jurisprudence of democracy has shaped the course and character of German politics while upholding the rule of law and defending the constitutionally prescribed “free democratic basic order.” In furtherance of these objectives, the Constitutional Court has invalidated regulations limiting the rights of minor parties and constitutionalizing measures designed to stabilize Germany’s system of parliamentary government. These purposes have been served by constitutional decisions on voting rights, public funding of election campaigns, dissolution of Parliament, and proportional representation, including the limiting 5 ...


The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford Jan 2006

The Phantom Philosophy? An Empirical Investigation Of Legal Interpretation, 65 Md. L. Rev. 841 (2006), Jason J. Czarnezki, William K. Ford

UIC John Marshall Law School Open Access Faculty Scholarship

This Article tests a model of judicial decision making that incorporates elements of both the attitudinal model and the legal model, along with measures of institutional and judicial background characteristics such as collegiality and trial court experience. We develop a measure of interpretive philosophy relying primarily on judicial opinions, which we code for certain indicators of traditional interpretive approaches (i.e., the use of interpretive tools). The critical question is whether judges with similar interpretive philosophies are more likely to agree with one another when deciding cases. Our general finding is that ideology and interpretive philosophy are not significant predictors ...


Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford Jan 2006

Judging Expertise In Copyright Law, 14 J. Intell. Prop. L. 1 (2006), William K. Ford

UIC John Marshall Law School Open Access Faculty Scholarship

No abstract provided.


The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert Jan 2006

The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert

Faculty Publications

The article begins with the premise that any failure to mitigate defense should aim to minimize the sum of three costs: the costs associated with inefficient behavior by defendants, the costs associated with inefficient behavior by plaintiffs, and the administrative costs of claim adjudication. If cost minimization is the goal, then whether a failure to mitigate defense exists, and the content of the antitrust plaintiff’s mitigation requirement, should differ depending on the type of damages the plaintiff is seeking to recover. The bulk of this article discusses how the defense should apply to different damages claims.The article proceeds ...


Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert Jan 2006

Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert

Faculty Publications

A general definition of exclusionary conduct has become a sort of Holy Grail for antitrust scholars. At present, four proposed definitions appear most promising: (1) conduct that could exclude an equally efficient rival; (2) conduct that raises rivals' costs unjustifiably; (3) conduct that, on balance, impairs consumer welfare by creating market power without providing countervailing consumer benefits; and (4) conduct that makes no economic sense but for its exclusionary effect on rivals.


How Much Justice Can We Afford?: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John M. Lande Jan 2006

How Much Justice Can We Afford?: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John M. Lande

Faculty Publications

This article discusses how the U.S. court system can function optimally given declining trial rates and the limited resources available. The question of how much justice we can afford is a challenge that becomes more difficult as budgets fall behind the increasing demand for and cost of court services. Presumably most analysts would agree that courts should try cases when appropriate - and help litigants find just resolutions without trial when it is not needed. The courts' ability to provide trials in some cases is possible only if the vast majority of other cases are not tried.This article provides ...


Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff Jan 2006

Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff

Faculty Publications

In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily ...


The Merger Of Common-Law And Equity Pleading In Virginia, William Hamilton Bryson Jan 2006

The Merger Of Common-Law And Equity Pleading In Virginia, William Hamilton Bryson

Law Faculty Publications

This article describes the separation of common law and equity in Virginia leading up to the 2006 merger of common law and equity pleading and the problems that remain to be solved by the courts.


Alexander Forrester's Chancery Reports (1732-1739), William Hamilton Bryson Jan 2006

Alexander Forrester's Chancery Reports (1732-1739), William Hamilton Bryson

Law Faculty Publications

Alexander Forrester was made a bencher on 27 November 1762. He had a large law practice in the Court of Chancery, the House of Lords, the Privy Council, and the Board of Trade. One of his regular clients was the duke of Bedford. In 1754, he represented the lower house of the General Assembly of Virginia in a very contentious dispute before the Privy Council against the Lieutenant Governor of Virginia over fees for putting the seal to royal patents. At the time of his death, he had chambers at 6 New Square, Lincoln's Inn. He was a member ...


Viewpoint: Legislating Without Deliberation, Carl W. Tobias Jan 2006

Viewpoint: Legislating Without Deliberation, Carl W. Tobias

Law Faculty Publications

No abstract provided.


The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer Jan 2006

The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer

Scholarly Articles

The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Bank of America Securities, Judge Shira Scheindlin - of the Zubulake e-discovery cases - penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that duty. Not ...


State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia Jan 2006

State Courts And The Interpretation Of Federal Statutes, Anthony J. Bellia

Journal Articles

Scholars have long debated the separation of powers question of what judicial power federal courts have under Article III of the Constitution in the enterprise of interpreting federal statutes. Specifically, scholars have debated whether, in light of Founding-era English and state court judicial practice, the judicial power of the United States should be understood as a power to interpret statutes dynamically or as faithful agents of Congress. This Article argues that the question of how courts should interpret federal statutes is one not only of separation of powers but of federalism as well. State courts have a vital and often ...


Scott Ockey And Catherine Condas V. Iron Mountain Alliance, Inc., Iron Mountain Holding Group L.C., Iron Mountain Associates, Llc, White Pine Associates, Inc., George Condas, Nick J. Condas, Chris Condas, Ellen Bayas, John Lehmer, Alexandra Ockey, John Condas, Susi Kontgis, Marina Condas, Hermione Bayas, Ellen Ockey-Johnson, Keith Kelley, Walt Brett And Tom Guald: Reply Brief, Utah Court Of Appeals Jan 2006

Scott Ockey And Catherine Condas V. Iron Mountain Alliance, Inc., Iron Mountain Holding Group L.C., Iron Mountain Associates, Llc, White Pine Associates, Inc., George Condas, Nick J. Condas, Chris Condas, Ellen Bayas, John Lehmer, Alexandra Ockey, John Condas, Susi Kontgis, Marina Condas, Hermione Bayas, Ellen Ockey-Johnson, Keith Kelley, Walt Brett And Tom Guald: Reply Brief, Utah Court Of Appeals

Utah Court of Appeals Briefs (1996–2006)

Appeal from the Third Judicial District Court, Summit County The Honorable Robert K. Hilder