Law Commons^™

An Intellectual History Of Judicial Activism, Roger Craig Green

Roger Craig Green

This Article seeks to reclaim the _term_ judicial activism by exploring the _concept_ of judicial activism that underlies it. From newsrooms to confirmation hearings, judicial activism is a uniquely popular epithet condemning judicial misconduct. One goal of this Article is to dispel misperceptions about what judicial activism actually is. Popular examples include understandings of activism as (i) any exercise of judicial review, (ii) any result with which the observer disagrees, (iii) any decision purporting to enhance individual rights, or (iv) any opinion that fails to defer to actions of elected officials.

A second project is to explain in positive terms …

Judicial Independence And Nonpartisan Elections, Brandice Canes-Wrone, Tom S. Clark

Brandice Canes-Wrone

This Article argues against the conventional wisdom about nonpartisan judicial elections. In contrast to the claims of policy advocates and the scholarly literature, we suggest that nonpartisan elections do not necessarily encourage greater judicial independence than partisan elections do. Instead, nonpartisan elections create the incentive for judges to cater to public opinion, and this pressure will be particularly strong for the types of issues that attract attention from interest groups, the media, and voters. After developing this argument, we support it with new empirical evidence. Specifically, we examine patterns of judicial decisions on abortion-related cases heard by state courts of …

It's Not Just Shopping, Urban Lofts, And The Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform Family Courts, Todd Brower

todd brower

Courts today are deeply involved in matters involving lesbian, gay, bisexual and transgendered persons. Same-sex marriage, custody disputes, conflict with religious claims and other, more routine family law cases all bring sexual orientation minorities into the judicial system as parties, witnesses, lawyers, or jurors. Like sexuality, gender and gender roles have traditionally and significantly influenced these issues. Nevertheless, judges and the legal system often have little factual information about the lesbians and gay men who appear in their courtrooms, instead relying on stereotypes of gay persons. Such reliance fails to see the real people currently present in family courts and …

Social Cognition 'At Work:' Schema Theory And Lesbian And Gay Identity In Title Vii, Todd Brower

todd brower

Lesbians and gay men are frequent subjects for modern news, politics, and court opinions. From marriage for same-sex couples to Congressional hearings on the military’s “Don’t ask, don’t tell” regulation, decision-makers are setting policy based on their ideas about how gay people are and how they fit into society. But what are those perceptions and how do they interact with law? We ordinarily think of lesbians and gay men as predominantly childless, urban residents of cities like San Francisco, New York, Chicago, or Los Angeles or as inhabitants of the Northeastern or Pacific Coast states. However, data from the 2000 …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

The Reagan Administration And The Rehnquist Court's New Federalism: Understanding The Role Of The Federalist Society, Amanda L. Hollis-Brusky

Amanda Hollis-Brusky

This article takes to task and complicates the narrative advanced by Professor Dawn Johnsen in her 2003 Indiana Law Review Article, “Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change.” Using evidence drawn from an in-depth examination of the speeches and writings of actors associated with both the early Federalists and the Reagan Administration, archival documents from the Ronald Reagan Presidential Library, as well as data gathered from personal interviews, this study presents a richer, more nuanced, and more complete narrative of the impact of the Reagan Revolution on the New Federalism. In sum, it …

Critical Error, Bryan Adamson

Bryan L Adamson

Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …

Parsing Supreme Court Dicta To Adjudicate Non-Workplace Harms, Lisa D. Taylor

Lisa D Taylor

When the Supreme Court issued its landmark Title VII decision in Burlington Northern & Santa Fe Railway Co v. White, it concluded that the statute’s anti-retaliation provision reaches beyond the workplace to redress non-workplace harms. All of the harms alleged in that case, however, bore a clear and direct relationship to the plaintiff’s employment. As such, the Court’s instruction on that point was unnecessary. The debate over the dictum-holding distinction is rich, but this Article concludes that the Court’s discussion of non-workplace harms in Burlington Northern was indisputably dictum. It is commonplace among the lower federal courts to practice blind …

State Actors Beating Children: A Call For Judicial Relief, Deana Ann Pollard Sacks

Deana A Pollard

Controversy over public school corporal punishment is at an all-time high. On August 20, 2008, the Human Rights Watch/ACLU brought public attention to the issue by releasing its report on corporal punishment of children in American public schools. Lawsuits challenging this state action on constitutional grounds continue to be filed, as advocates seeking to ban school paddling refuse to accept that beating students is constitutionally permissible, despite their repeated losses in the federal courts, and the Supreme Court’s refusal to consider the issue again on June 23, 2008. Ignoring the uproar, nearly half of the United States continue to employ …

Mining For Gold: The Constitutional Court Of South Africa's Experience With Comparative Constitutional Law, Ursula Bentele

Ursula Bentele

MINING FOR GOLD: THE CONSTITUTIONAL COURT OF SOUTH AFRICA’S EXPERIENCE WITH COMPARATIVE CONSTITUTIONAL LAW

Ursula Bentele

Abstract

Despite a long history of referring to foreign law in its opinions, the Supreme Court’s recent citations to such sources have caused heated controversy. Critics warn of threats to sovereignty as well as serious flaws in the way judges use outside authority. Largely missing from this debate is any probing examination of the actual practice of engaging with foreign authorities. This article attempts to fill the empirical void by analyzing closely one court that has used foreign law extensively: the Constitutional Court of …

Avoiding The 'Secret Sentence': A Model For Ensuring That New Jersey Criminal Defendants Are Advised About Immigration Consequences Before Entering Guilty Pleas, Joanne Gottesman

Joanne Gottesman

Reforms over the past decade have transformed the immigration law landscape and have led to more noncitizens than ever being subject to removal for less serious crimes than in the past. As a result of these changes, proper counseling of noncitizen criminal defendants is more critical than ever. This article examines the current state of the law in New Jersey regarding immigration related ineffective assistance of counsel claims and the responsibility of criminal defense attorneys to advise noncitizen clients about immigration consequences. It recommends judicial, legislative, and professional changes to better ensure that noncitizen defendants are properly advised about immigration …

"Mr. Presidential Candidate: Whom Would You Nominate?", Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

The Appropriations Power And Sovereign Immunity, Jay Tidmarsh, Paul F. Figley

Jay Tidmarsh

Historical discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence — or non-existence — of sovereign immunity begin with the English and American common-law doctrines of sovereign immunity, and ask whether the founding period altered that doctrine. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690-1700), which is often regarded as the first …

Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram

Hadar Aviram

This Article addresses an immensely important, and often neglected, problem faced by legal practitioners in their daily professional lives: how do legal actors feel, and act, when the cases in which they are involved have evident, and disturbing, socio-economic implications? This situation is particularly uncomfortable for prosecutors, judges, and defense attorneys, whose criminal case workload often reflects much deeper social inequalities and problems, and whose defendant population is characterized by an overrepresentation of disempowered groups. Legal actors who engage daily with "the tip of the social iceberg" in the courtroom are keenly aware of the broader aspects of the problem; …

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

Alexandra B. Klass

This Article considers the broad range of “tort experiments” states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called “federalism revolution” of the 1990s to limit Congressional authority in the name of states’ rights, …

“Mr. Presidential Candidate: Whom Would You Nominate?”, Stuart M. Benjamin, Mitu Gulati

Stuart M Benjamin

Presidential candidates compete on multiple fronts for votes. Who is more likeable? Who will more effectively negotiate with allies and adversaries? Who has the better vice-presidential running mate? Who will make better appointments to the Supreme Court and the cabinet? This last question is often discussed long before the inauguration, for the impact of a Secretary of State or a Supreme Court Justice can be tremendous. The importance of such appointments notwithstanding, presidential candidates are not pushed to name their prospective appointees, pre-election. In other words, we do not expect candidates to compete on naming the better slates of nominees. …

Reconceptualizing Competence: An Appeal, Mae C. Quinn

Mae C. Quinn

This article builds on contemporary critiques of the justice system’s treatment of the mentally impaired, examining an important issue that until now has gone wholly unaddressed -- the effect of defendant impairment on the criminal appeals process. It argues that conventional wisdom stressing the importance of defendant competence during criminal trials but ignoring the incompetence of defendants during direct appeals makes little sense. Such an approach to defendant capacity not only fails to account for the realities of criminal practice, but works to undermine the fairness and efficacy of the American appellate process. Thus this paper calls for reconceptualization of …

This Ain’T The Texas Two Step Folks: Disharmony, Confusion, And The Unfair Nature Of Personal Jurisdiction Analysis In The Fifth Circuit, Angela M. Laughlin

Angela M Laughlin

This article explores the deep divide in federal and state courts over the proper application of the minimum contacts test, as well as the arguments in favor of each test. As a case study, this article will use the Fifth Circuit Court of Appeals as a model of how personal jurisdiction analysis is playing out in the federal circuit courts. It will explore how this circuit court has resolved the foreseeability issue and in particular, it will explore the additional burdens placed by that Circuit’s reading of Burger King v. Rudzewicz, which transfers the burden of proof of the fundamental …

A Tale Of Two Waivers: Waiver Of The Jury Waiver Defense Under The Federal Rules Of Civil Procedure, Jarod S. Gonzalez

Jarod S. Gonzalez

There is an extensive amount of academic commentary on the enforceability of pre-dispute contractual jury waivers. My article, entitled A Tale of Two Waivers: Waiver of the Jury Waiver Defense under the Federal Rules of Civil Procedure, considers a related topic that has not received much scholarly attention: the procedure for raising a jury waiver defense in federal civil litigation. Specifically, I advocate a novel approach that treats a contractual jury waiver defense as an affirmative defense under Rule 8 of the Federal Rules of Civil Procedure. The affirmative defense approach requires a party that desires to strike a jury …

Colonialism Without Colonies: On The Extraterritorial Jurisprudence Of The U.S. Court For China, Teemu Ruskola

Law and Contemporary Problems

The US Court for China was created by Congress in 1906, and it was not abolished until 1943. The Shanghai-based court had extraterritorial jurisdiction over all American citizens within its district, known as the District of China for jurisdictional purposes. The court is fascinating in its own right, and it produced what one observer has described as a system of jurisdiction that was more complete than that of any body extraterritorial law. Here, Ruskola elaborates the court's jurisprudence. He focuses on some of the conflicts-of-law problems the court had to face. Also, he describes the law applied by the court, …

Book Review Of "How Judges Think" By Richard Posner, Charles D. Kelso, R. Randall Kelso

charles D. Kelso

This book review summarizes Judge Posner's presentation of how judges think and adds an evaluation.

Judiciary Must Take Bold Steps To Get Rid Of Backlog Of Cases, Dr. Zahidul Islam Biswas

Dr. Zahidul Islam

Backlog of cases appears to be a common predicament of the judiciaries worldwide. Countries from both developed and developing world have been facing this problem more or less alike. However, this difficulty for Bangladesh judiciary seems going from bad to worse every year. This article endeavours to explore the reasons behind the backlog of cases, and how to overcome the same.

The Demise Of The Law-Finding Jury In America And The Birth Of American Legal Science: History And Its Challenge For Contemporary Society, Jonathan R. Lahn

Jonathan R Lahn

Today we take for granted the division of labor in the courtroom whereby judges have the exclusive authority to determine the law applicable to a given case, while juries decide questions of fact. Yet this strict separation of powers did not become a fact of American legal life until the mid-19th Century, and was not recognized by the United States Supreme Court as a constitutional principle until the 1890s. Legal historians, while certainly aware of the tradition of the law-finding jury in early American legal practice, have thus far failed to fully explore its significance as a reflection of early …

Enhancing Courtroom Presentation Through Technology, Fredric I. Lederer

Popular Media

No abstract provided.

Courtroom Technology, Fredric I. Lederer, Tom O'Connor, Timothy A. Piganelli

Popular Media

No abstract provided.

Judicial Paradoxes, Randolph R. Goldman

Randolph R Goldman

Paradoxes naturally arise in law. Judges as meta level actors analyze a formal system of law when they render court decisions, but they also are object level actors in the very formal system they study. The study of formal sytems in logic provides key insights into law.

The Problematic Nature Of Contractionist Statutory Interpretations, Brian G. Slocum

Brian G. Slocum

The main thesis of Daniel B. Rodriguez and Barry R. Weingast's recent article, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007), is important: the voting decisions of legislators can be influenced by the activist statutory interpretations of courts. Specifically, the authors demonstrate that the broad interpretations of progressive legislation made by courts in the 1960s and 1970s undermined the legislative deals struck between ardent supporters of progressive legislation and the moderate legislators necessary for passage of the statutes. Although these expansionist interpretations broadened the reach of important progressive legislation, they had the effect of discouraging …

Habitations Of Cruelty - Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest forms. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant

San Diego International Law Journal

This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …

Public Access And Media Rules For Administrative Adjudicators In High Profile Hearings, Chris Mcneil

Christopher B. McNeil, J.D., Ph.D.

This article offers a brief overview of the legal issues relevant to creating media access policies for administrative agencies. It also provides a model policy for use by executive-branch adjudicators in anticipation of high profile agency evidentiary hearings.