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2006

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Full-Text Articles in Law

Court Review: Volume 42, Issue 3-4 - Complete Issue Dec 2006

Court Review: Volume 42, Issue 3-4 - Complete Issue

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 43, Issue 3-4 - Cover Dec 2006

Court Review: Volume 43, Issue 3-4 - Cover

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 42, Issue 3-4 - Table Of Contents Dec 2006

Court Review: Volume 42, Issue 3-4 - Table Of Contents

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 42, Issue 3-4 - Editor's Note Dec 2006

Court Review: Volume 42, Issue 3-4 - Editor's Note

Court Review: The Journal of the American Judges Association

This issue presents four viewpoints on current issues involving judicial elections, politics, and the effect of public opinion on the courts. In our lead article, Shira Goodman and Lynn Marks of Pennsylvanians for Modern Courts tell the story of Pennsylvania’s 2005 retention election for the Pennsylvania Supreme Court. With very little warning, public opposition developed to the retention of two justices: one was retained with 54% of the vote and one was thrown out of office with only 49% voting to retain him. The election was unusual because it did not relate to opinions issued by either justice. Rather ...


Court Review: Volume 42, Issue 3-4 - Book Review: A Judge's Role In The Rule Of Law, William F. Hurst Iv Dec 2006

Court Review: Volume 42, Issue 3-4 - Book Review: A Judge's Role In The Rule Of Law, William F. Hurst Iv

Court Review: The Journal of the American Judges Association

Two recently published books, On the Rule of Law: History, Politics, Theory by Brian Z. Tamanaha, and The Rule of Law in America by Ronald A. Cass, provide an in-depth analysis into what the rule of law means today, its history, and what impact its meaning has on the current American judiciary.


Court Review: Volume 42, Issue 3-4 - Lessons From An Unusual Retention Election, Shira J. Goodman, Lynn A. Marks Dec 2006

Court Review: Volume 42, Issue 3-4 - Lessons From An Unusual Retention Election, Shira J. Goodman, Lynn A. Marks

Court Review: The Journal of the American Judges Association

On November 8, 2005, something happened in Pennsylvania that has never happened before: an appellate judge, a supreme court justice no less, lost an uncontested retention election. Not only was the loss unprecedented, but with the exception of one retention election in 1993, appellate justices and judges in Pennsylvania routinely have won retention by margins of 70% to 30%. This year, one justice lost his retention election and another barely won with just 54% of the vote.

Retention elections have been a feature of judicial elections in Pennsylvania since the state constitution was amended in 1969. Following election to an ...


Court Review: Volume 42, Issue 3-4 - Judicial Elections: Changes And Challenges, Jan Witold Baran Dec 2006

Court Review: Volume 42, Issue 3-4 - Judicial Elections: Changes And Challenges, Jan Witold Baran

Court Review: The Journal of the American Judges Association

Today, myriad approaches for selecting judges exist and few states—if any at all—use identical schemes. In many states, the selection methods vary depending on whether the judge is a trial or appellate judge, or an initial selection or an incumbent. As will be seen, the vast majority of state judges are elected. Recently, judicial campaigns have become increasingly controversial while traditional restraints have fallen to the wayside. This article will address the variety of election methods, the challenges that recent constitutional decisions have presented to the ABA Code of Judicial Conduct, and whether innovations, such as public financing ...


Court Review: Volume 42, Issue 3-4 - Seizing The Accountability Moment: Enlisting Americans In The Fight To Keep Courts Fair, Impartial, And Independent, Bert Brandenberg Dec 2006

Court Review: Volume 42, Issue 3-4 - Seizing The Accountability Moment: Enlisting Americans In The Fight To Keep Courts Fair, Impartial, And Independent, Bert Brandenberg

Court Review: The Journal of the American Judges Association

Did the 2005 uproar over Terri Schiavo’s end-of-life case mark a peak in the recent surge of attacks on the independence of America’s courts? When the case generated threats to impeach and even murder the presiding judge, and Congress passed a bill seeking to manipulate the case, broad public disapproval helped end the political crisis.1 The President backpedaled—“I believe in an independent judiciary. I believe in checks and balances”2—and dispatched the Vice President and Attorney General to add their reassurances. Just a few months later, Supreme Court nomination hearings offered little hint of the ...


Court Review: Volume 42, Issue 3-4 - Judges, Law, Politics & Strategy, Frank B. Cross Dec 2006

Court Review: Volume 42, Issue 3-4 - Judges, Law, Politics & Strategy, Frank B. Cross

Court Review: The Journal of the American Judges Association

In law, we commonly presume that judges reach decisions based on legal materials, such as precedents. In political science, researchers typically presume that judges do not reach decisions based on such legal materials. They maintain that the apparent reliance on precedent to reach decisions is simply a hoax designed to provide cover for a particular outcome. These researchers traditionally argued that judges reach their personally preferred outcome in the case and then rationalize it after the fact with references to precedent, conveniently supplied them by the attorneys for their preferred side.

Much of the empirical research on judicial decision making ...


Court Review: Volume 42, Issue 3-4 - A Profile Of Settlement, John Barkai, Elizabeth Kent, Pamela Martin Dec 2006

Court Review: Volume 42, Issue 3-4 - A Profile Of Settlement, John Barkai, Elizabeth Kent, Pamela Martin

Court Review: The Journal of the American Judges Association

Ninety-eight percent of civil cases settle,1 right? Well, not exactly. Although claims of settlement rates of 90% and above are cited frequently, settlement rates really are not that high. Many commentators start with an accurate picture of low, single-digit trial rates (typically 2%-3%), but then they inappropriately assume the inverse—namely, that all the remaining cases are settled. Commentators ignore the fact that a significant proportion of cases are terminated for reasons other than trial or settlement, and their mistake goes undetected because most state judicial systems do not collect any information about settlements.

On the other hand ...


Court Review: Volume 42, Issue 3-4 - E-Courts: The Times They Are A-Changin’, James E. Mcmillan Dec 2006

Court Review: Volume 42, Issue 3-4 - E-Courts: The Times They Are A-Changin’, James E. Mcmillan

Court Review: The Journal of the American Judges Association

The title obviously comes from Bob Dylan’s classic song from 1964. That song captured the spirit of the times and again, in a small way, captures ours as well. This year’s upcoming E-Courts Conference (www.e-courts.org) in December will highlight both the changes that computers have brought to court operations and where things are going in the future.

Court operations have been impacted over the past decade with the implementation of electronic court document filing (aka E-filing). This year the U.S. federal courts will have electronic filing available in nearly all district and bankruptcy courts. We ...


Court Review: Volume 42, Issue 3-4 - Directory Of Officers And Board Of Governors, 2005-2006 Dec 2006

Court Review: Volume 42, Issue 3-4 - Directory Of Officers And Board Of Governors, 2005-2006

Court Review: The Journal of the American Judges Association

Directory of Officers and Board of Governors of American Judges Association


Court Review: Volume 42, Issue 3-4 - President’S Column, Michael Cicconetti Dec 2006

Court Review: Volume 42, Issue 3-4 - President’S Column, Michael Cicconetti

Court Review: The Journal of the American Judges Association

Living in Northeastern Ohio, we are constantly promoting this part of the state as an area virtually free of natural disasters. Oh sure, we have our lake-effect snow, which we have learned to treat as more of an inconvenience and annoyance than a danger. Hurricanes? Those are reserved for the coastal states. Tornadoes? Hello, Kansas! Northeastern Ohio hasn’t experienced one in 35 years. Droughts? We may have an occasional dry spell during the summer but we always have the Great Lakes as a plentiful water source. Mudslides? Never. Forest fires? Doesn’t happen. Earthquakes? Minor blips on the Richter ...


Court Review: Volume 42, Issue 3-4 - The Resource Page Dec 2006

Court Review: Volume 42, Issue 3-4 - The Resource Page

Court Review: The Journal of the American Judges Association

No abstract provided.


Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J. Nov 2006

Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council’s Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational ...


The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan Nov 2006

The Decreasing Ontological Density Of The State In Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

Over the last century-plus, Catholic social thought has gradually reduced the ontological density of the state, to the point that the state now appears to have only a tentative grasp on the natural law basis of its legitimacy. During the first part of the twentieth century, Catholic social doctrine tended to view the legitimate state as a participant in the divine rule; although draped in a sacred mantle, the state was subject to the limits imposed by the divine and natural law. In response to the totalitarian states’ transgressing of those limits at mid-century, Catholic thinkers reduced the scope and ...


Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison Oct 2006

Metaphor, Objects, And Commodities, George H. Taylor, Michael J. Madison

University of Pittsburgh School of Law Working Paper Series

This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel’s idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin’s analysis, basing the critique in part on Gadamer’s argument that meaning and application are interrelated and that meaning changes with application ...


The Reemergence Of Restitution: Theory And Practice In The Restatement (Third) Of Restitution, Chaim Saiman Oct 2006

The Reemergence Of Restitution: Theory And Practice In The Restatement (Third) Of Restitution, Chaim Saiman

Working Paper Series

The ALI’s Restatement (Third) of Restitution provides one of the most interesting expressions of contemporary legal conceptualism. This paper explores the theory and practice of post-realist conceptualism through a review and critique of the Restatement. At the theoretical level, the paper develops a typology of different forms of conceptualism, and shows that the Restatement has more in common with the high formalism of the nineteenth century than with contemporary modes of private law discourse. At the level of substantive doctrine, the paper explains why labels in fact make a difference, and assesses which recoveries are more (and less) likely ...


A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein Oct 2006

A Contractarian Argument Against The Death Penalty, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

Opponents of the death penalty typically base their opposition on contingent features of its administration, arguing that the death penalty is applied discriminatory, that the innocent are sometimes executed, or that there is insufficient evidence of the death penalty’s deterrent efficacy. Implicit in these arguments is the suggestion that if these contingencies did not obtain, serious moral objections to the death penalty would be misplaced. In this Article, Professor Finkelstein argues that there are grounds for opposing the death penalty even in the absence of such contingent factors. She proceeds by arguing that neither of the two prevailing theories ...


Court Review: Volume 43, Issue 3 – Recent Criminal Decisions Of The United States Supreme Court: The 2006-2007 Term, Charles H. Whitebread Oct 2006

Court Review: Volume 43, Issue 3 – Recent Criminal Decisions Of The United States Supreme Court: The 2006-2007 Term, Charles H. Whitebread

Court Review: The Journal of the American Judges Association

The past Term of the Court was one in which it swung to the right. A single justice, Justice Anthony Kennedy, made all the difference—being in the majority in every five-to-four decision that split along ideological lines. Cases of particular interest to state-court judges held that a passenger in a routine traffic stop is seized for Fourth Amendment purposes, that California’s determinative sentencing law was unconstitutional, and that the Court’s decision on Crawford v. Washington would not be applied retroactively on collateral review.


Court Review: Volume 43, Issue 3 – Recent Civil Decisions Of The United States Supreme Court: The 2006-2007 Term, Charles Whitebread Oct 2006

Court Review: Volume 43, Issue 3 – Recent Civil Decisions Of The United States Supreme Court: The 2006-2007 Term, Charles Whitebread

Court Review: The Journal of the American Judges Association

The past Term of the Court was one in which it swung to the right. A single justice, Justice Anthony Kennedy, made all the difference—being in the majority in every five-to-four decision that split along ideological lines. Significant 5-4 civil decisions included ones upholding the Partial-Birth Abortion Ban Act of 2003, limiting Title VII pay discrimination suits by strictly interpreting the date the statute of limitations begins to run, limiting the ability of school districts to consider race in assigning students to schools, and further limiting punitive-damage claims.


Court Review: Volume 43, Issue 3 – Table Of Contents Oct 2006

Court Review: Volume 43, Issue 3 – Table Of Contents

Court Review: The Journal of the American Judges Association

Remarks on Judicial Independence by Ruth Bader Ginsburg
Recent Civil Decisions of the United States Supreme Court: The 2006-2007 Term by Charles H. Whitebread
Recent Criminal Decisions of the United States Supreme Court: The 2006-2007 Term by Charles H. Whitebread
Jailing Ourselves: Standards Used for Declaring United States Citizens to Be Enemy Combatants by Joseph Carl Storch
Editor’s Note
President’s Column
The Resource Page


Court Review: Volume 43, Issue 3 – Jailing Ourselves: Standards Used For Declaring United States Citizens To Be Enemy Combatants, Joseph Carl Storch Oct 2006

Court Review: Volume 43, Issue 3 – Jailing Ourselves: Standards Used For Declaring United States Citizens To Be Enemy Combatants, Joseph Carl Storch

Court Review: The Journal of the American Judges Association

On a clear, blue September morning in 2001, nineteen men hijacked four commercial airplanes headed toward the West Coast. They crashed two into the World Trade Center in New York City, one into the Pentagon in Northern Virginia, and one into a Pennsylvania field. In the wake of the shocking attack, Congress authorized President Bush to use military force against those who committed the attack, commencing a “war on terror” that still rages today.

The government has fought the “war on terror” on many fronts. The military is engaged in Afghanistan and Iraq; diplomatic overtures have been made to Libya ...


Court Review: Volume 43, Issue 3 – The Resource Page Oct 2006

Court Review: Volume 43, Issue 3 – The Resource Page

Court Review: The Journal of the American Judges Association

Websites:
Center for Court Innovation www.problemsolvingjustice.org
National Center for State Courts www.ncsconline.org/PSC
The Polling Report www.pollingreport.com


Court Review: Volume 43, Issue 3 – President’S Column, Eileen Olds Oct 2006

Court Review: Volume 43, Issue 3 – President’S Column, Eileen Olds

Court Review: The Journal of the American Judges Association

I can never say enough what an honor and a privilege it is to have been elected to serve as your 46th president of the American Judges Association. I have used that time since our annual conference in Vancouver to crystallize my vision of what I would like to accomplish during my tenure and of what I believe we can accomplish together. The potential to see dreams realized is what keeps us going! Like many of you, I have concluded that judges in general—and the members of AJA in particular—must seize the opportunity to improve our delivery of ...


Court Review: Volume 43, Issue 3 – Remarks On Judicial Independence, Ruth Bader Ginsburg Oct 2006

Court Review: Volume 43, Issue 3 – Remarks On Judicial Independence, Ruth Bader Ginsburg

Court Review: The Journal of the American Judges Association

Essential to the rule of law in any land is an independent judiciary, judges not under the thumb of other branches of Government, and therefore equipped to administer the law impartially. As experience in the United States and elsewhere confirms, however, judicial independence is vulnerable to assault; it can be shattered if the society law exists to serve does not take care to assure its preservation.

On the essence of independent, impartial judging, a comment by former U.S. Chief Justice William H. Rehnquist seems to me right on target. Using a metaphor from his favorite sport, he compared the ...


Court Review: Volume 43, Issue 3 – Editor’S Note, Steve Leben Oct 2006

Court Review: Volume 43, Issue 3 – Editor’S Note, Steve Leben

Court Review: The Journal of the American Judges Association

We welcomed Alan Tomkins as coeditor of Court Review in the last issue. This issue marks my return to Court Review from the overall leadership of the American Judges Association (see page 111 for the new president’s opening remarks). I certainly enjoyed my year as AJA president, but it will be great to be able to refocus on Court Review and its role as an aid to judges both in doing their daily work and in protecting the role of independent judges in our society.


Court Review: Volume 43, Issue 3 – Cover Oct 2006

Court Review: Volume 43, Issue 3 – Cover

Court Review: The Journal of the American Judges Association

No abstract provided.


Court Review: Volume 43, Issue 3 – Complete Issue Oct 2006

Court Review: Volume 43, Issue 3 – Complete Issue

Court Review: The Journal of the American Judges Association

Table of Contents:
Remarks on Judicial Independence by Ruth Bader Ginsburg
Recent Civil Decisions of the United States Supreme Court: The 2006-2007 Term by Charles H. Whitebread
Recent Criminal Decisions of the United States Supreme Court: The 2006-2007 Term by Charles H. Whitebread
Jailing Ourselves: Standards Used for Declaring United States Citizens to Be Enemy Combatants by Joseph Carl Storch
Editor’s Note
President’s Column
The Resource Page


Noncomparabilities & Non Standard Logics, Robert C. Hockett Sep 2006

Noncomparabilities & Non Standard Logics, Robert C. Hockett

Cornell Law Faculty Publications

Many normative theories set forth in the welfare economics, distributive justice and cognate literatures posit noncomparabilities or incommensurabilities between magnitudes of various kinds. In some cases these gaps are predicated on metaphysical claims, in others upon epistemic claims, and in still others upon political-moral claims. I show that in all such cases they are best given formal expression in nonstandard logics that reject bivalence, excluded middle, or both. I do so by reference to an illustrative case study: a contradiction known to beset John Rawls's selection and characterization of primary goods as the proper distribuendum in any distributively just ...