Law Commons^™

Goldwasser, The Telecom Act, And Reflections On Antitrust Remedies, Philip J. Weiser

Publications

No abstract provided.

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

All Faculty Scholarship

No abstract provided.

Empirical Research Into The Chinese Judicial System, Donald C. Clarke

GW Law Faculty Publications & Other Works

The last few years have seen a proliferation of programs by Western states and international agencies designed, in broad terms, to promote reforms in the Chinese judicial system. What is not clear, however, is whether there has been systematic thinking about the precise goals to be sought in these and other projects, whether these goals are appropriate, and indeed whether their achievement can even be ascertained in some measurable way. This paper is an attempt to think about what we know, what we might want to know, and what we can know about China's judicial system, broadly defined.

A key …

The Norm Of Prior Judicial Experience And Its Consequences For Career Diversity On The U.S. Supreme Court, Lee Epstein, Jack Knight, Andrew D. Martin

Faculty Scholarship

No abstract provided.

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

What Do We Mean By "Judicial Independence"?, Stephen B. Burbank

All Faculty Scholarship

In this article, the author argues that the concept of "judicial independence" has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of …

The War On Terrorism And The Constitution, Michael I. Meyerson

All Faculty Scholarship

Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

Disconnects Between Water And Land Use Resource Management [Abstract], Dan Tarlock, Lora A. Lucero

Allocating and Managing Water for a Sustainable Future: Lessons from Around the World (Summer Conference, June 11-14)

2 pages.

Juries, Justice And Multiculturalism, Nancy S. Marder

All Faculty Scholarship

No abstract provided.

A New Look At Sexual Harassment Under The Fair Housing Act: The Forgotten Role Of §3604(C), Robert G. Schwemm, Rigel C. Oliveri

Law Faculty Scholarly Articles

Sexual harassment in housing is a significant national problem. Although less visible than the comparable problem in employment, sexual harassment in housing may be as prevalent and probably more devastating to its victims.

Nevertheless, relatively little attention has been paid to this issue or to the law that should govern it. Indeed, the law of sexual harassment in housing developed well after and in virtual lock-step with the law of sexual harassment in employment. Thus, courts have simply interpreted the Fair Housing Act (FHA) to prohibit sexual harassment to the same degree—and only to the same degree—as it is prohibited …

Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Special Division Agonistes, John Q. Barrett

Faculty Publications

When the independent counsel law sank, the casualties included a special "division" of the United States Court of Appeals for the District of Columbia Circuit. This division was the special court that Congress had created "for the purpose of appointing independent counsels." The now-expired 1994 independent counsel statute had, like its three predecessors, directed the Chief Justice of the United States to appoint three judges from the Supreme Court and/or the federal Courts of Appeals to serve on the special court for two-year terms. This independent counsel court, which was located for administrative purposes in the United States Court of …

Supreme Court Selection As War, Michael J. Gerhardt

Faculty Publications

No abstract provided.

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 …

Dissenting Opinions: In The Georgia Supreme Court, R. Perry Sentell Jr.

Scholarly Works

Under our system of justice, each jurisdiction necessarily evolves its own distinct tradition of judicial dissent. That evolution's impetus, history, pattern, and results all converge in an informative profile--affording yet another means of studying a state's highest appellate court. A dissent profile of the Georgia Supreme Court thus offers an additional evaluative view of the state's most important judicial cathedral.

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/.

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Conjectures And Exhumations: Citations Of History, Philosophy And Sociology Of Science In Us Federal Courts, Gary Edmond, David Mercer

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article examines the circumstances in which a version of Sir Karl Popper's philosophy of science became US law. Among historians, philosophers and sociologists of science, as well as legal commentators, the US Supreme Court's Daubert v. Merrell Dow Pharmaceuticals, .Inc. (1993) decision has received considerable attention. The case is significant because America's most senior court produced a definition of science (for legal purposes). This definition was authorized by the symbolic exhumation, celebration and appropriation of key elements of the philosophy of science developed decades earlier by Popper. Significantly, it was not just Popper's philosophy that was exhumed and resurrected …

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

All Faculty Scholarship

The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …

The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner

Faculty Articles

No abstract provided.

Civil Litigation From Litigants' Perspectives: What We Know And What We Don't Know About The Litigation Experience Of Individual Litigants, Tamara Relis

Scholarly Works

This study of the entire phenomenon of civil litigation commenced with the sole aim of ascertaining the extant gaps in the available knowledge about litigation from the perspectives of those who are by far affected most by it: the litigants. What does litigation mean for those who are directly embroiled and whose lives may consequently be radically transformed? Serious lacunas exist. However, extensive readings worldwide throughout the research process result in a stark elucidation of an overlooked, yet crucially important and somewhat egregious state of affairs, making surprisingly clear just how pernicious litigation is for the average 'nonrepeat player'.

Earning Deference: Reflections On The Merger Of Environmental And Land-Use Law, Michael Allan Wolf

UF Law Faculty Publications

The bedrock notion that courts should, in the overwhelming majority of cases, defer to lawmakers is currently under attack in the nation's courts, commentary and classrooms. Leading the way are several United States Supreme Court Justices who, in cases involving the Commerce Clause, the Takings Clause and Section Five of the Fourteenth Amendment, are much more willing than their immediate predecessors to second-guess the motives and tactics of elected and appointed officials at all levels of government. Given this new juris-political reality, it is more important than ever that local government officials--who are often (though, certainly, not always justifiably) viewed …

Default Rules In Sales And The Myth Of Contracting Out, James J. White

Articles

In this article, I trace the dispute in the courts and before the ALI and NCCUSL over the proper contract formation and interpretation default rules. In Part II, I consider the Gateway litigation. In Part III, I deal with UCITA and the revision to Article 2. In Part IV, I consider the merits of the competing default rules.

The Courtroom Technology Wars Are Here!, Fredric I. Lederer

Popular Media

No abstract provided.

From Common Law To Civil Law Jurisdictions: Court Adr On The Move In Germany, Nadja Alexander

Research Collection Yong Pung How School Of Law

In Australia today, ADR processes are recognised not only as a distinct system of dispute resolution, but also as a system that interacts interdependently with the legal system. This is most clearly demonstrated in the context of court-related mediation, which is increasingly seen as an effective way to increase access to, participation in, and satisfaction with the way legal disputes are resolved. Cappelletti categorises ADR as the third wave in the worldwide access-to-justice movement. ADR provides a different approach and a different sort of justice for solving disputes — what Cappelletti labels ‘co-existential justice’.

Burdine V. Johnson -- To Sleep, Perchance To Get A New Trial: Presumed Prejudice Arising From Sleeping Counsel, James M. Donovan

Law Faculty Scholarly Articles

Few images slice as deeply into our self-image as a fair society than that of a defendant on trial for his very life depending upon the services of an attorney who naps throughout the proceedings. Although this scenario is not new, the courts have yet to resolve definitively how they should respond to a defendant burdened with snoozing counsel. This note discusses the outcome of the latest attempt. UPDATE: While a conscious lawyer is presumably a requirement of due process, some jurisdictions make no similar demand that judges remain awake: see http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2007/273.html

Discriminatory Housing Statements And §3604(C): A New Look At The Fair Housing Act’S Most Intriguing Provision, Robert G. Schwemm

Law Faculty Scholarly Articles

Today, more than three decades after the 1968 Fair Housing Act ("FHA") banned such behavior, blatant discrimination—often accompanied by racist slurs and other explicitly discriminatory statements—continues to plague America's housing markets. The FHA not only outlawed discrimination in most housing transactions on the basis of race, color, religion, and national origin, but also contained a specific prohibition, § 3604(c), banning all discriminatory housing statements. Unlike the FHA's more traditional prohibitions against discriminatory refusals to deal and discriminatory terms and conditions, § 3604(c)'s ban on discriminatory statements has not been the subject of much litigation or debate.

Part I of the …